


> o>' 









s /' 









.\*" * 






$% : ^: <#?** 



V 






o 



c- V - 




^ ^ 






^ $ 






4 



AY s •' 






C ^ . ^ A^ . 






V 



K> ,v 



V . - 



/ '* > 




A * 



\ ^ ; 






f * 



■0' X 



v ' » * "< 









g5 ' r ^ 

A" "Vr 



V 













■ 
















. 









: %. / . 






e- A 






■ A' 






. \ x 

A' * ^ 












% V* 



%. ^ 










"V^ 









<3 



Oo. 



"b o N 


























A : i a 















V ^ ■** 






JUSTICE: 



BEING PART IV 



OF THE 



PRINCIPLES OF ETHICS. 



BY 

HERBERT SPENCER. 



NEW YORK: 

D. APPLETON AND COMPANY, 

1891. 







r 



Authorized Edition. 



1% 



PREFACE. 



In the Preface to The Data of Ethics, published in June, 
1879, there occurred the sentence: — "Hints, repeated of 
late years with increasing frequency and distinctness, have 
shown me that health may permanently fail, even if life 
does not end, before I reach the last part of the task I 
have marked out for myself." There followed the state- 
ment that since "this last part of the task" — the affiliation 
of Ethics on the doctrine of Evolution — was that " to which 
I regard all the preceding parts as subsidiary," I did not 
like to contemplate the probability of failure in executing it. 
Hence the decision to write The Data of Ethics in advance. 

Something like the catastrophe foreseen gradually came. 
Years of declining health and decreasing power of work, 
brought, in 1886, a complete collapse; and further elabora- 
tion of The Synthetic Philosophy was suspended until 
the beginning of 1890, when it became again possible 
to get through a small amount of serious work daily. Of 
course there arose the question — What work to undertake 
first ? Completion of The Principles of Ethics was, without 
hesitation, decided upon : the leading divisions of The 
Principles of Sociology having been executed. A further 
question presented itself — What part of The Principles of 
Ethics should have precedence ? Led by the belief that my 
remaining energies would probably not carry me through 
the whole, I concluded that it would be best to begin with 



VI PEEJFACE. 

the part of most importance. Hence, passing over Part II, 
— " The Inductions of Ethics/' and Part III,—" The Ethics 
of Individual Life," I devoted myself to Part IY,— " The 
Ethics of Social Life : Justice," and have now, to my great 
satisfaction, succeeded in finishing it. 

Should improved health be maintained, I hope that, 
before the close of next year, I may issue Parts II and III, 
completing the first volume ; and should I be able to con- 
tinue, I shall then turn my attention to Part Y, — "The 
Ethics of Social Life : Negative Beneficence," and Part YI, 
1 — " The Ethics of Social Life : Positive Beneficence." 

This work covers a field which, to a considerable extent, 
coincides with that covered by Social Statics, published in 
1850 ; though the two differ, alike in extent, in form, and 
partially in their ideas. One difference is that what there 
was in my first book of supernaturalistic interpretation has 
disappeared, and the interpretation has become exclusively 
naturalistic — that is, evolutionary. With this difference 
may be joined the concomitant difference, that whereas a 
biological origin for ethics was, in Social Statics, only 
indicated, such origin has now been definitely set forth; 
and the elaboration of its consequences has become the 
cardinal trait. And a further distinction is that induction 
has been more habitually brought in support of deduction. 
It has in every case been shown that the corollaries from 
the first principle laid down, have severally been in course 
of verification during the progress of mankind. 

It seems proper to add that the first five chapters have 
already been published in The Nineteenth Century for 
March and April, 1890. 

London, June, 1891. H. S. 



CONTENTS. 



CHAP. PAGE 

I. — ANIMAL-ETHICS ... ... ... ... 3 

II. SUB-HUMAN JUSTICE ... ... ... 8 

III. HUMAN JUSTICE ... ... ... ... 17 

IV. THE SENTIMENT OP JUSTICE ... ... 25 

V. THE IDEA OP JUSTICE ... ... ... 35 

i/VL. THE POEMULA OP JUSTICE ... ... 45 

VII. THE AUTHORITY OP THIS FORMULA ... ... 49 

VIII. ITS COROLLARIES ... ... ... 62 

IX. — THE RIGHT TO PHYSICAL INTEGRITY... ... 64 

X. THE RIGHTS TO PREE MOTION AND LOCOMOTION 72 

XI. THE RIGHTS TO THE USES OP NATURAL MEDIA 80 

XII. THE RIGHT OP PROPERTY ... ... ... 94 

XIII. THE RIGHT OP INCORPOREAL PROPERTY ... 103 

XIV. THE RIGHTS OP GIFT AND BEQUEST... ... 118 

^ XV. TEE RIGHTS OP PREE EXCHANGE AND PREE - 

CONTRACT ... ... ... ... 127 

XVI. THE RIGHT OP PREE INDUSTRY ... ... 133 



Vlll 



CONTENTS. 



PAGE 

xvit. — the eights of free belief and worship ... 136 

xviii. — the rights of free speech and publication 141 

xix. — a retrospect with an addition ... ... 148 

xx. the rights of women ... ... ... 157 

xxi. the rights of children ... ... 167 

xxii. political rights— so-called ... ... 174 

xxiii. — the nature of the state ... ... 181 

xxiv. — the constitution of the state ... ... 188 

xxv. — the duties of the state ... ... 201 

xxvi. the limits of state-duties ... ... 215 

xxvii. — the limits of state -duties-continued ... 228 

xxviii. the limits of 8t ate-dmies-continued ... 237 

xxix. the limits of state-duties— continued ... 251 

Appendices, 

appendix a. — the kantian idea of rights "... 263 

appendix b. the land-question ... ... 266 

appendix c. — the moral motive ... ... 271 

appendix d. conscience in animals ... 277 



JUSTICE 



CHAPTER I. 

ANIMAL-ETHICS. 

§ 1. Those who have not read the first division of this 
work will be surprised by the above title. But the 
chapters on " Conduct in General " and " The Evolution of 
Conduct/ ' will have made clear to those who have read them 
that something which may be regarded as animal-ethics is 
implied _. 

It was there shown that the conduct which Ethics treats 
of is not separable from conduct at large ; that the highest 
conduct is that which conduces to the greatest length, 
breadth, and completeness of life ; and that, by implication, 
there is a conduct proper to each species of animal, which is 
the relatively good conduct — a conduct which stands to- 
wards that species as the conduct we morally approve stands 
towards the human species. 

Most people regard the subject-matter of Ethics as being 
conduct considered as calling forth approbation or reproba- 
tion. But the primary subject-matter of Ethics is conduct 
considered objectively as producing good or bad results to 
self or others or both. 

Even those who think of Ethics as concerned only with 
conduct which deserves praise or blame, tacitly recognize 
an animal-ethics ; for certain acts of animals excite in them 
antipathy or sympathy. A bird which feeds its mate while 
she is sitting is regarded with a sentiment of approval. For 



4 JUSTICE. 

a hen which refuses to sit upon her eggs there is a feeling 
of aversion; while one which fights in defence of her 
chickens is admired. 

Egoistic acts, as well as altruistic acts, in animals are 
classed as good or bad. A squirrel which lays up a store 
of food for the winter is thought of as doing that which a 
squirrel ought to do ; and, contrariwise, one which idly 
makes no provision and dies of starvation, is thought of 
as properly paying the penalty of improvidence. A dog 
which surrenders its bone to another without a struggle, 
and runs away, we call a coward — a word of reprobation. 

Thus, then, it is clear that acts which are conducive to 
preservation of offspring or of the individual we consider as 
good relatively to the species^ and conversely. 

§ 2. The two classes of cases of altruistic acts and 
egoistic acts just exemplified, show us the two cardinal 
and opposed principles of animal-ethics. 

During immaturity benefits received must be inversely 
proportionate to capacities possessed. Within the family- 
group most must be given where least is deserved, if desert 
is measured by worth. Contrariwise, after maturity is 
reached benefit must vary directly as worth : worth being 
measured by fitness to the conditions of existence. The ill 
fitted must suffer the evils of unfitness, and the well fitted 
profit by their fitness. 

These are the two laws which a species must conform to 
if it is to be preserved. Limiting the proposition to the 
higher types (for in the lower types, parents give to 
offspring no other aid than that of laying up small amounts 
of nutriment with their germs : the result being that an 
enormous mortality has to be balanced by an enormous 
fertility) — thus limiting the proposition, I say, it is clear 
that if, among the young, benefit were proportioned to 
efficiency, the species would disappear forthwith ; and that 
if, among adults, benefit were proportioned to inefficiency, 



ANIMAL-ETHICS. O 

the species would disappear by decay in a few generations 
(see Principles of Sociology, § 322). 

§ 3. What is the ethical aspect of these principles ? 
In the first place, animal life of all but the lowest kinds 
has been maintained by virtue of them. Excluding the 
Protozoa, among which their operation is scarcely discern- 
ible, we see that without gratis benefits to offspring, and 
earned benefits to adults, life could not have continued. 

In the second place, by virtue of them life has gradually 
evolved into higher forms. By care of offspring, which 
has become greater with advancing organization, and by 
survival of the fittest in the competition among adults, which 
has become more habitual with advancing organization, 
superiority has been perpetually fostered and further 
advances caused. 

On the other hand, it is true that to this self-sacrificing 
care for the young and this struggle for existence among 
adults, has been due the carnage and the death by starva- 
tion which have characterized the evolution of life from the 
beginning. It is also true that the processes consequent on 
conformity to these principles are responsible for the 
production of torturing parasites, which out-number in their 
kinds all other creatures. 

To those who take a pessimist view of animal-life in 
general, contemplation of these principles can of course 
yield only dissatisfaction. But to those who take an 
optimist view, or a meliorist view, of life in general, and 
who accept the postulate of hedonism, contemplation of 
these principles must yield greater or less satisfaction, and 
fulfilment of them must be ethically approved. 

Otherwise considered, these principles are, according 
to the current belief, expressions of the Divine will, or 
else, according to the agnostic belief, indicate the mode 
in which works the Unknowable Power throughout tho 



JUSTICE. 

Universe ; and in either case they have the warrant hence 
derived. 

§ 4. But here, leaving aside the ultimate controversy 
of pessimism versus optimism, it will suffice for present 
purposes to set out with a hypothetical postulate, and to 
limit it to a single species. If the preservation and pros- 
perity of such species is to be desired, there inevitably 
emerge one most general conclusion and from it three less 
general conclusions. 

The most general conclusion is that, in order of obligation, 
the preservation of the species takes precedence of the 
preservation of the individual. It is true that the species 
has no existence save as an aggregate of individuals; 
and it is true that, therefore, the welfare of the species 
is an end to be subserved only as subserving the 
welfares of individuals. But since disappearance of the 
species, implying disappearance of all individuals, in- 
volves absolute failure in achieving the end, whereas 
disappearance of individuals, though carried to a great 
extent, may leave outstanding such number as can, by 
the continuance of the species, make subsequent fulfil- 
ment of the end possible ; the preservation of the indi- 
vidual must, in a variable degree according to circum- 
stances, be subordinated to the preservation of the 
species, where the two conflict. The resulting corollaries 
are these : — 

First, that among adults there must be conformity to the 
law that benefits received shall be directly proportionate to 
merits possessed : merits being measured by power of self- 
sustentation. For, otherwise, the species must suffer in two 
ways. It must suffer immediately by sacrifice of superior 
to inferior, which entails a general diminution of welfare ; 
and it must suffer remotely by further increase of the 
inferior which, by implication, hinders increase of the 



ANIMAL-ETHICS. / 

superior, and causes a general deterioration, ending in 
extinction if it is continued. 

Second, that during early life, before self-sustentation has 
become possible, and also while it can be but partial, the 
aid given must be the greatest where the worth shown is 
the smallest — benefits received must be inversely pro- 
portionate to merits possessed : merits being measured by 
power of self-sustentation. Unless there are gratis benefits 
to offspring, unqualified at first and afterwards qualified by 
decrease as maturity is approached, the species must dis- 
appear by extinction of its young. There is, of course, 
necessitated a proportionate self- subordination of adults. 

Third, to this self-subordination entailed by parenthood 
has, in certain cases, to be added a further self-subordination^ 
If the constitution of the species and its conditions of ex- 
istence are such that sacrifices, partial or complete, of 
some of its individuals, so subserve the welfare of the 
species that its numbers are better maintained than they 
would otherwise be, then there results a justification for 
such sacrifices. 

Such are the laws by conformity to which a species is 
maintained ; and if we assume that the preservation of a 
particular species is a desideratum, there arises in it an 
obligation to conform to these laws, which we may call, 
according to the case in question, quasi-ethical or ethical. 



CHAPTER II. 

SUB-HUMAN JUSTICE. 

§ 5. Of the two essential but opposed principles of 
action by pursuance of which each species is preserved, we 
are here concerned only with the second. Passing over 
the law of the family as composed of adults and young, we 
have now to consider exclusively the law of the species as 
composed of adults only. 

This law we have seen to be that individuals of most 
worth, as measured by their fitness to the conditions of 
existence, shall have the greatest benefits, and that inferior 
individuals shall receive smaller benefits, or suffer greater 
evils, or both — a law which, under its biological aspect, has 
for its implication the survival of the fittest. Interpreted 
in ethical terms, it is that each individual ought to be subject 
to the effects of its own nature and resulting conduct. 
Throughout sub-human life this law holds without qualifica- 
tion ; for there exists no agency by which, among adults, 
the relations between conduct and consequence can be 
interfered with. 

Fully to appreciate the import of this law, we may with 
advantage pause a moment to contemplate an analogous 
law ; or, rather, the same law as exhibited in another 
sphere. Besides being displayed in the relations among 
members of a species, as respectively well sustained or ill 
sustained according to their well-adapted activities or ill- 



SUB-HUMAN JUSTICE. VJ 

adapted activities, it is displayed in the relations of the 
parts of each organism to one another. 

Every muscle, every viscus, every gland, receives blood 
in proportion to function. If it does little it is ill-fed and 
dwindles ; if it does much it is well-fed and . grows. 
By this balancing of expenditure and nutrition, there 
is, at the same time, a balancing of the relative powers 
of the parts of the organism; so that the organism as a 
whole is fitted to its existence by having its parts con- 
tinuously proportioned to the requirements. And clearly 
this principle of self- adjustment within each individual, is 
parallel to that principle of self-adjustment by which the 
species as a whole keeps itself fitted to its environment. 
For by the better nutrition and greater power of propaga- 
tion which come to members of the species that have 
faculties and consequent activities best adapted to the needs, 
joined with the lower sustentation of self and offspring which 
accompany less adapted faculties and activities, there is 
caused such special growth of the species as most conduces 
to its survival in face of surrounding conditions. 

This, then, is the law of sub-human justice, that each 
individual shall receive the benefits and the evils of its own 
nature and its consequent conduct. 

§ 6. But sub-human justice is extremely imperfect, 
alike in general and in detail. . 

In general, it is imperfect in the sense that there exist 
multitudinous species the sustentation of which depends on 
the wholesale destruction of other species ; and this whole- 
sale destruction implies that the species serving as prey 
have the relations between conduct and consequence so 
habitually broken that in very few individuals are they long 
maintained. It is true that in such cases the premature 
loss of life suffered from enemies by nearly all members 
of the species, must be considered as resulting from their 
natures — their inability to contend with the destructive 
agencies they are exposed to. But we may fitly recognize 



10 JUSTICE. 

the truth that this violent ending of the immense majority 
of its lives, implies that the species is one in which justice, 
as above conceived, is displayed in but small measure. 

Sub-human justice is extremely imperfect. in detail, in 
the sense that the relation between conduct and conse- 
quence is in such an immense proportion of cases broken 
by accidents — accidents of kinds which fall indiscriminately 
upon inferior and superior individuals. There are the 
multitudinous deaths caused by inclemencies of weather, 
which, in the great majority of cases, the best members of 
the species are liable to like the worst. There are other 
multitudinous deaths caused by scarcity of food, which, if 
not wholly, still in large measure, carries off good and bad 
alike. Among low types, too, enemies are causes of death 
which so operate that superior as well as inferior are 
sacrificed. And the like holds with invasions by parasites, 
often widely fatal. These frequently destroy the best 
individuals as readily as the worst. 

The high rate of multiplication among low animals, 
required to balance the immense mortality, at once shows us 
that among them long survival is not insured by superiority ; 
and that thus the sub-human justice, consisting in con- 
tinued receipt of the results of conduct, holds individually 
in but few cases. 

§ 7. And here we come upon a truth of great signifi- 
cance — the truth that sub-human justice becomes more 
decided as organization becomes higher. 

Whether this or that fly is taken by a swallow, whether 
among a brood of caterpillars an ichneumon settles on this 
or that, whether out of a shoal of herrings this or that is 
swallowed by a cetacean, is an event quite independent of 
individual peculiarity : good and bad samples fare alike. 
With high types of creatures it is otherwise. Keen senses, 
sagacity, agility, give a particular carnivore special power 
to secure prey. In a herd of herbivorous creatures, the 
one with quickest hearing, clearest vision, most sensitive 



SUB-HUMAN JUSTICE. 11 

nostril, or greatest speed, is the one most likely to save 
itself. 

Evidently, in proportion as the endowments, mental 
and bodily, of a species are high, and as, consequently, its 
ability to deal with the incidents of the environment is 
great, the continued life of each individual is less depen- 
dent on accidents against which it cannot guard. And, 
evidently, in proportion as this result of general superiority 
becomes marked, the results of special superiorities are 
felt. Individual differences of faculty play larger parts in 
determining individual fates. Now deficiency of a power 
shortens life, and now a large endowment prolongs it. 
That is to say, individuals experience more fully the results 
of their own natures — the justice is more decided. 

§ 8. As displayed among creatures which lead solitary 
lives, the nature of sub-human justice is thus sufficiently 
expressed ; but on passing to gregarious creatures we dis- 
cover in it an element not yet specified. 

Simple association, as of deer, profits the individual and 
the species only by that more efficient safeguarding which 
results from the superiority of a multitude of eyes, ears, 
and noses over the eyes, ears, and nose of a single indi- 
vidual. Through the alarms more quickly given, all 
benefit by the senses of the most acute. Where this, 
which we may call passive co-operation, rises into active 
co-operation, as among rooks where one of the flock keeps 
watch while the rest feed, or as among the cimarrons, a 
much-hunted variety of mountain sheep in Central America, 
which similarly place sentries, or as among beavers where a 
number work together in making dams, or as among wolves 
where, by a plan of attack in which the individuals play 
different parts, prey is caught which would otherwise not 
be caught; there are still greater advantages to the indi- 
viduals and to the species. And, speaking generally, we 
may say that gregariousness, and co-operation more or less 



12 JUSTICE. 

active, establish themselves in a species only because they 
are profitable to it ; since, otherwise, survival of the fittest 
must prevent establishment of them. 

But now mark that this profitable association is made 
possible only by observance of certain conditions. The 
acts directed to self-sustentation which each performs, are 
performed more or less in presence of others performing 
like acts; and there tends to result more or less inter- 
ference. If the interference is great, it may render the 
association unprofitable. For the association to be profitable 
the acts must be restrained to such extent as to leave a 
balance of advantage. Survival of the fittest will else exter- 
minate that variety of the species in which association begins. 

Here, then, we find a further factor in sub-human justice. 
Each individual, receiving the benefits and the injuries due 
to its own nature and consequent conduct, has to carry on 
that conduct subject to the restriction that it shall not in 
any large measure impede the conduct by which each 
other individual achieves benefits or brings on itself 
injuries. The average conduct must not be so aggressive 
as to cause evils which out-balance the good obtained by 
co-operation. Thus, to the positive element in sub-human 
justice has to be added, among gregarious creatures, a 
negative element. 

§ 9. The necessity for observance of the condition 
that each member of the group, while carrying on self- 
sustentation and sustentation of offspring, shall not 
seriously impede the like pursuits of others, makes itself 
so felt, where association is established, as to mould the 
species to it. The mischiefs from time to time experienced 
when the limits are transgressed, continually discipline all 
in such ways as to produce regard for the limits ; so that 
such regard becomes, in course of time, a natural trait of 
the species. For, manifestly, regardlessness of the limits, if 
great and general, causes dissolution of the group. Those 



SUB-HUMAN JUSTICE. 13 

varieties only can survive as gregarious varieties in which 
there is an inherited tendency to maintain the limits. 

Yet further, there arises such general consciousness of 
the need for maintaining the limits, that punishments are 
inflicted on transgressors — not only by aggrieved members 
of the group, but by the group as a whole. A " rogue " | 
elephant (always distinguished as unusually malicious) is 
one which has been expelled from the herd : doubtless • 
because of conduct obnoxious to the rest — probably aggres-j 
sive. It is said that from a colony of beavers an idler is/ 
banished, and thus prevented from profiting by labours id 
which he does not join : a statement made credible by the fact \ 
that drones, when no longer needed, are killed by worker- i 
bees. The testimonies of observers in different countries ^ 
show that a flock of crows, after prolonged noise of con- 
sultation, will summarily execute an offending member. 
And an eye-witness affirms that among rooks, a pair which 
steals the sticks from neighbouring nests has its own nest 
pulled to pieces by the rest. 

Here, then, we see that the a priori condition to har- 
monious co-operation comes to be tacitly recognized as 
something like a law; and there is a penalty consequent 
on breach of it. 

§ 10. That the individual shall experience all the con- 
sequences, good and evil, of its own nature and consequent 
conduct, which is that primary principle of sub-human 
justice whence results survival of the fittest, is, in creatures 
that lead solitary lives, a principle complicated only by the 
responsibilities of parenthood. Among them the purely 
egoistic actions of self-sustentation have, during the repro- 
ductive period, to be qualified by that self-subordination 
which the rearing of offspring necessitates, but by no other 
self-subordination. Among gregarious creatures of con- 
siderable intelligence, however, disciplined, as we have just 
seen, into due regard for the limits imposed by other's 



14 JUSTICE. 

presence, the welfare of the species, besides demanding 
self- subordination in the rearing of offspring, occasionally 
demands a further self-subordination. 

We read of bisons that, during the calving season, the 
bulls form an encircling guard round the herd of cows and 
calves, to protect them against wolves and other predatory 
animals : a proceeding which entails on each bull some 
danger, but which conduces to the preservation of the 
species. Out of a herd of elephants about to emerge from 
a forest to reach a drinking place, one will first appear and 
look round in search of dangers, and, not discerning any, 
will then post some others of the herd to act as watchers ; 
after which the main body comes forth and enters the 
water. Here a certain extra risk is run by the few that 
the many may be the safer. In a still greater degree we are 
shown this kind of action by a troop of monkeys, the members 
of which will combine to defend or rescue one of their 
number, or will fitly arrange themselves when retreating 
from an enemy — " the females, with their young, leading the 
way, the old males bringing up the rear . . . the place 
of danger "; for though in any particular case the species 
may not profit, since more mortality may result than would 
have resulted, yet it profits in the long run by the display 
of a character which makes attack on its groups dangerous. 

Evidently, then, if by such conduct one variety of a 
gregarious species keeps up, or increases, its numbers, while 
other varieties, in which self-subordination thus directed does 
not exist, fail to do this, a certain sanction is acquired ) 
for such conduct. The preservation of the species being 
the higher end, it results that where an occasional mor- 
tality of individuals in defence of the species furthers this 
preservation in a greater degree than would pursuit of ex- 
clusive benefit by each individual, that which we recognize 
as sub-human justice may rightly have this second limitation. 

§ 11. It remains only to point out the order of priority, 



SUB-HUMAN JUSTICE. 15 

and the respective ranges, of these principles. The law of 
relation between conduct and consequence, which, through- 
out the animal kingdom at large, brings prosperity to those 
individuals which are structurally best adapted to their 
conditions of existence, and which, under its ethical aspect, 
is expressed in the principle that each individual ought to 
receive the good and the evil which arises from its own 
nature, is the primary law holding of all creatures ; and is 
applicable without qualification to creatures which lead 
solitary lives, save by that self-subordination needed among 
the higher of them for the rearing of offspring. 

Among gregarious creatures, and in an increasing degree 
as they co-operate more, there comes into play the law, 
second in order of time and authority, that those actions 
through which, in fulfilment of its nature, the individual 
achieves benefits and avoids evils, shall be restrained by the 
need for non-interference with the like actions of associated 
individuals. A substantial respect for this law in the 
average of cases, being the condition under which alone 
gregariousness can continue, it becomes an imperative law 
for creatures to which gregariousness is a benefit. But, 
obviously, this secondary law is simply a specification of 
that form which the primary law takes under the conditions 
of gregarious life ; since, by asserting that in each 
individual the inter-actions of conduct and consequence 
must be restricted in the specified way, it tacitly re-asserts 
that these inter-actions must be maintained in other in- 
dividuals, that is in all individuals. 

Later in origin, and narrower in range, is the third law, 
that under conditions such that, by the occasional sacrifices 
of some members of a species, the species as a whole 
prospers, there arises a sanction for such sacrifices, and a 
consequent qualification of the law that each individual shall 
receive the benefits and evils of its own nature. 

Finally, it should be observed that whereas the first law 
is absolute for animals in general, and whereas the second 



16 JUSTICE. 

law is absolute for gregarious animals, the third law is 
relative to the existence of enemies of such kinds that, 
in contending with them, the species gains more than 
it loses by the sacrifice of a few members; and in the 
absence of such enemies this qualification imposed by the 
third law disappears. 



CHAPTER III. 

HUMAN JUSTICE. 

§ 12. The contents of the last chapter foreshadow the 
contents of this. As, from the evolution point of view, 
human life must be regarded as a further development of 
sub-human life, it follows that from this same point of view, 
human justice must be a further development of sub-human 
justice. For convenience the two are here separately treated, 
but they are essentially of the same nature, and form parts 
of a continuous whole. 

Of man, as of all inferior creatures, the law by conformity 
to which the species is preserved, is that among adults the 
individuals best adapted to the conditions of their existence 
shall prosper most, and that individuals least adapted to 
the conditions of their existence shall prosper least — a law 
which, if uninterfered with, entails survival of the fittest, 
and spread of the most adapted varieties. And as before 
so here, we see that, ethically considered, this law implies 
that each individual ought to receive the benefits and the 
evils of his own nature and consequent conduct : neither 
being prevented from having whatever good his actions 
normally bring to him, nor allowed to shoulder off on to 
other persons whatever ill is brought to him by his actions. 

To what extent such ill, naturally following from his 
actions, may be voluntarily borne by other persons, it does 
not concern us now to inquire. The qualifying effects of 



18 JUSTICE. 

pity, mercy, and generosity, will be considered hereafter 
in the parts dealing with "Negative Beneficence" and 
"Positive Beneficence." Here we are concerned only with 
pure Justice. 

The law thus originating, and thus ethically expressed, 
is obviously that which commends itself to the common 
apprehension as just. Sayings and criticisms daily heard 
imply a perception that conduct and consequence ought 
not to be dissociated. When, of some one who suffers a 
disaster, it is said — " He has no one to blame but himself," 
there is implied the belief that he has not been inequitably 
dealt with. The comment on one whose misjudgment or 
misbehaviour has entailed evil upon him, that "he has 
made his own bed, and now he must lie in it/' has behind it 
the conviction that this connexion of cause and effect is 
proper. Similarly with the remark — " He got no more than 
he deserved." A kindred conviction is implied when, 
conversely, there results good instead of evil. "He has 
fairly earned his reward; " " He has not received due recom- 
pense;" are remarks indicating the consciousness that there 
should be a proportion between effort put forth and advan- 
*/ tage achieved — that justice demands such a proportion. 

§ 13. The truth that justice becomes more pronounced 
as organization becomes higher, which we contemplated in 
the last chapter, is further exemplified on passing from sub- 
human justice to human justice. The degree of justice and 
the degree of organization simultaneously make advances. 
These are shown alike by the entire human race, and by its 
superior varieties as contrasted with its inferior. 

We saw that a high species of animal is distinguished 
from a low species, in the respect that since its aggregate 
suffers less mortality from incidental destructive agencies, 
each of its members continues on the average for a longer 
time subject to the normal relation between conduct and 
consequence; and here we see that the human race as a 



HUMAN JUSTICE. 19 

whole, far lower in its rate of mortality than nearly all races 
of inferior kinds, usually subjects its members for much 
longer periods to the good and evil results of well-<adapted 
and ill-adapted conduct. We also saw that as, among the 
higher animals, a greater average longevity makes it 
possible for individual differences to show their effects for 
longer periods, it results that the unlike fates of different 
individuals are to a greater extent determined by that 
normal relation between conduct and consequence which 
constitutes justice ; and we here see that in mankind, 
nnlikenesses of faculty in still greater degrees, and for still 
longer periods, work out their effects in advantaging the 
superior and disadvantaging the inferior in the continuous 
play of conduct and consequence. 

Similarly is it with the civilized varieties of mankind as 
compared with the savage varieties. A still further 
diminished rate of mortality implies that there is a still 
larger proportion, the members of which gain good from 
well-adapted acts and suffer evil from ill-adapted acts. 
While also it is manifest that both the greater differences 
of longevity among individuals, and the greater differences 
of social position, imply that in civilized societies more than 
in savage societies, differences of endowment, and conse- 
quent differences of conduct, are enabled to cause their 
appropriate differences of results, good or evil : the justice 
is greater. 

§ 14. More clearly in the human race than in lower 
races, we are shown that gregariousness establishes itself 
because it profits the variety in which it arises ; partly by 
furthering general safety and partly by facilitating sustenta- 
tion. And we are shown that the degree of gregariousness 
is determined by the degree in which it thus subserves the 
interests of the variety. For where the variety is one of 
which the members live on wild food, they associate only in 
small groups : game and fruits widely distributed, can 



20 JUSTICE. 

support these only. But greater gregariousness arises 
where agriculture makes possible the support of a large 
number on a small area; and where the accompanying 
development of industries introduces many and various 
co-operations. 

We come now to the truth — faintly indicated among lower 
beings and conspicuously displayed among human beings — 
that the advantages of co-operation can be had only by 
conformity to certain requirements which association 
imposes. The mutual hindrances liable to arise during 
the pursuit of their ends by individuals living in proximity, 
must be kept within such limits as to leave a surplus of 
advantage obtained by associated life. Some types of men, 
f as the Abors, lead solitary lives, because their aggressive- 
ness is such that they cannot live together. And this 
extreme case makes it clear that though, in many primitive 
groups, individual antagonisms often cause quarrels, yet 
the groups are maintained because their members derive a 
balance of benefit — chiefly in greater safety. It is also 
clear that in proportion as communities become developed, 
their division of labour complex, and their transactions 
multiplied, the advantages of co-operation can be gained 
only by a still better maintenance of those limits to each 
man's activities necessitated by the simultaueous activities 
of others. This truth is illustrated by the unprosperous or 
decaying state of communities in which the trespasses of 
individuals on one another are so numerous and great as 
generally to prevent them from severally receiving the 
normal results of their labours. 

The requirement that individual activities must be 
mutually restrained, which we saw is so felt among certain 
inferior gregarious creatures that they inflict punishments 
on those who do not duly restrain them, is a requirement 
which, more imperative among men, and more distinctly 
felt by them to be a requirement, causes a still more marked 
habit of inflicting punishments on offenders. Though in 



HUMAN JUSTICE. 21 

primitive groups it is commonly left to any one who is 
injured to revenge himself on the injurer ; and though even 
in the societies of feudal Europe, the defending and en-\ 
forcing of his claims was in many cases held to be each 
man's personal concern ; yet there has ever tended to grow 
up such perception of the need for internal order, and such ^ 
sentiment accompanying the perception, that infliction of 
punishments by the community as a whole, or by its 
established agents, has become habitual. And that a 
system of laws enacting restrictions on conduct, and 
punishments for breaking them, is a natural product of 
human life carried on under social conditions, is shown by 
the fact that in numerous nations composed of various 
types of mankind, similar actions, similarly regarded as 
trespasses, have been similarly forbidden. 

Through all which sets of facts is manifested the truth, 
recognized practically if not theoretically, that each 
individual carrying on the actions which subserve his life, 
and not prevented from receiving their normal results, 
good and bad, shall carry on these actions under such 
restraints as are imposed by the carrying on of kindred 
actions by other individuals, who have similarly to receive 
such normal results, good and bad. And vaguely, if not 
definitely, this is seen to constitute what is called justice. 

§ 15. We saw that among inferior gregarious creatures, 
justice in its universal simple form, besides being qualified 
by the self-subordination which parenthood implies, and 
in some measure by the self-restraint necessitated by as- 
sociation, is, in a few cases, further qualified in a small 
degree by the partial or complete sacrifice of individuals 
made in defence of the species. And now, in the highest 
gregarious creature, we see that this further qualification 
of primitive justice assumes large proportions. 

No longer, as among inferior beings, demanded only by 



22 JUSTICE. 

the need for defence against enemies of other kinds, this 
further self-subordination is, among human beings, also 
demanded by the need for defence against enemies of the 
same kind. Having spread wherever there is food, groups 
of men have come to be everywhere in one another's way ; 
and the mutual enmities hence resulting, have made the 
sacrifices entailed by wars between groups, far greater 
than the sacrifices made in defence of groups against 
inferior animals. It is doubtless true with the human race, 
as with lower races, that destruction of the group, or the 
variety, does not imply destruction of the species ; and it 
follows that such obligation as exists for self-subordination 
in the interests of the group, or the variety, is an ob- 
ligation of lower degree than is that of care of offspring, 
without fulfilment of which the species will disappear, 
and of lower degree than the obligation to restrain actions 
within the limits imposed by social conditions, without ful- 
filment, or partial fulfilment, of which the group will 
dissolve. Still, it must be regarded as an obligation to 
the extent to which the maintenance of the species is 
subserved by the maintenance of each of its groups. 

But the self-subordination thus justified, and in a sense 
rendered obligatory, is limited to that which is required for 
defensive war. Only because the preservation of the 
group as a whole conduces to preservation of its members' 
lives, and their ability to pursue the objects of life, is there 
a reason for the sacrifice of some of its members ; and this 
reason no longer exists when war is offensive instead of 
defensive. 

It may, indeed, be contended that since offensive wars 
initiate those struggles between groups which end in the 
destruction of the weaker, offensive wars, furthering the 
peopling of the Earth by the stronger, subserve the 
interests of the race. But even supposing that the con- 
quered groups always consisted of men having smaller 



HUMAN JUSTICE. 23 

mental or bodily fitness for war (which they do not ; for it 
is in part a question of numbers, and the smaller groups 
may consist of the more capable warriors), there would still 
be an adequate answer. It is only during the earlier 
stages of human progress that the development of 
strength, courage, and cunning, are of chief importance. 
After societies of considerable size have been formed, and 
the subordination needed for organizing them produced, 
other and higher . faculties become those of chief impor- 
tance ; and the struggle for existence carried on by violence, 
does not always further the survival of the fittest. The 
fact that but for a mere accident Persia would have con- 
quered Greece, and the fact that the Tartar hordes very 
nearly overwhelmed European civilization, show that 
offensive war can be trusted to subserve the interests of 
the race only when the capacity for a high social life does 
not exist; and that in proportion as this capacity develops, 
offensive war tends more and more to hinder, rather than 
to further, human welfare. In brief we may say that 
the arrival at a stage in which ethical considerations come 
to be entertained, is the arrival at a stage in which 
offensive war, by no means certain to further predominance 
of races fitted for a high social life, and certain to cause 
injurious moral reactions on the conquering as well as on the 
conquered, ceases to be justifiable ; and only defensive 
war retains a quasi-ethical justification. 

And here it is to be remarked that the self-subordination 
which defensive war involves, and the need for such 
qualification of the abstract principle of justice as it 
implies, belong to that transitional state necessitated by 
the physical-force conflict of races; and that' they must 
disappear when there is reached a peaceful state. That is 
to say, all questions concerning the extent of such quali- 
fications pertain to what we here distinguished as relative 
ethics ; and are not recognized by that absolute ethics 



24 JUSTICE. 

which is concerned with the principles of right conduct in 
a society formed of men fully adapted to social life. 

This distinction I emphasize here because, throughout 
succeeding chapters, we shall find that recognition of it 
helps us to disentangle the involved problems of political 
ethics. 



CHAPTER IV. 

THE SENTIMENT OF JUSTICE. 

§ 16. Acceptance of the doctrine of organic evolution 
determines certain ethical conceptions. The doctrine 
implies that the numerous organs in each of the innumer- 
able species of animals, have been either directly or 
indirectly moulded into fitness for the requirements of life 
by constant converse with those requirements. Simul- 
taneously, through nervous modifications, there have been 
developments of the sensations, instincts, emotions, and 
intellectual aptitudes, needed for the appropriate uses of 
these organs ; as we see in caged rodents which exercise 
their jaw-muscles and incisors by purposeless gnawing, in 
gregarious creatures which are miserable if they cannot 
join their fellows, in beavers which, kept in confinement, 
show their passion for dam-building by heaping up whatever 
sticks and stones they can find. 

Has this process of mental adaptation ended with primi- 
tive man ? Are human -beings incapable of having their 
feelings and ideas progressively adjusted to the modes of 
life imposed on them by the social state into which they 
have grown ? Shall we suppose that the nature which 
fitted them to the exigencies of savage life has remained 
unchanged, and- will remain unchanged, by the exigencies 
of civilized life ? Or shall we suppose that this aboriginal 
nature, by repression of some traits and fostering of others, 



26 JUSTICE. 

is made to approach more and more to a nature which finds 
developed society its appropriate environment, and the 
required activities its normal ones ? There are many 
believers in the doctrine of evolution who seem to have no 
faith in the continued adaptability of mankind. While 
glancing but carelessly at the evidence furnished by com- 
parisons of different human races with one another, and of 
the same races in different ages, they ignore entirely the 
induction from the phenomena of life at large. But if there 
is an abuse of the deductive method of reasoning there is 
also an abuse of the inductive method. One who refused 
to believe that a new moon would in a fortnight become 
full and then wane, and, disregarding observations 
accumulated throughout the past, insisted on watching the 
successive phases before he was convinced, would be con- 
sidered inductive in an irrational degree. But there might 
not unfairly be classed with him those who, slighting the 
inductive proof of unlimited adjustability, bodily and 
mental, which the animal kingdom at large presents, will 
not admit the adjustability of human nature to social life 
until the adjustment has taken place : nay, even ignore the 
evidence that it is taking place. 

Here we shall assume it to be an inevitable inference 
from the doctrine of organic evolution, that the highest 
type of living being, no less than all lower types, must go 
on moulding itself to those requirements which circum- 
stances impose. And we shall, by implication, assume that 
moral changes are among the changes thus wrought out. 

§ 17. The fact that when surfeit of a favourite food 
has caused sickness, there is apt to follow an aversion to 
that food, shows how, in the region of the sensations, 
experiences establish associations which influence conduct. 
And the fact that the house in which a wife or child died, 
or in which a long illness was suffered, becomes so associated 
with painful states of mind as to be shunned, sufficiently 



THE SENTIMENT OF JUSTICE. 27 

illustrates, in the emotional region, the mode in which 
actions may be determined by mental connexions formed in 
the course of life. When the circumstances of a species 
make certain relations between conduct and consequence 
habitual, the appropriately-linked feelings may come to 
characterize the species. Either inheritances of modifica- 
tions produced by habit, or more numerous survivals of 
individuals having nervous structures which have varied in 
fit ways, gradually form guiding tendencies, prompting 
appropriate behaviour and deterring from inappropriate. 
The contrast between fearless birds found on islands never 
before visited by man, and the birds around us, which show 
fear of man immediately they are out of the nest, exemplifies 
such adaptations. 

By virtue of this process there have been produced to 
some extent among lower creatures, and there are being 
further produced in man, the sentiments appropriate to 
social life. Aggressive actions, while they are habitually 
injurious to the group in which they occur, are not 
unfrequently injurious to the individuals committing them; 
since, though certain pleasures may be gained by them, 
they often entail pains greater than the pleasures. Con- 
versely, conduct restrained within the required limits, 
calling out no antagonistic passions, favours harmonious 
co-operation, profits the group, and, by implication, profits 
the average of its individuals. Consequently, there results, 
other things equal, a tendency for groups formed of members 
having this adaptation of nature, to survive and spread. 

Among the social sentiments thus evolved, one of chief 
importance is the sentiment of justice. Let us now consider 
more closely its nature. 

§ 18. Stop an animal's nostrils, and it makes frantic 
efforts to free its head. Tie its limbs together, and its 
struggles to get them at liberty are violent. Chain it by 
the neck or leg, and it is some time before it ceases its 



28 JUSTICE. 

attempts to escape. Put it in a cage, and it long continues 
restless. Generalizing these instances, we see that in 
proportion as the restraints on actions by which life is 
maintained are extreme, the resistances to them are great. 
Conversely, the eagerness with which a bird seizes the 
opportunity for taking flight, and the joy of a dog when 
liberated, show how strong is the love of unfettered move- 
ment. 

Displaying like feelings in like ways, man displays them 
in other and wider ways. He is irritated by invisible 
restraints as well as by visible ones ; and as his evolution 
becomes higher, he is affected by circumstances and actions 
which in more remote ways aid or hinder the pursuit of 
ends. A parallel will elucidate this truth. Primitively the 
love of property is gratified only by possession of food and 
shelter, and, presently, of clothing; but afterwards it is 
gratified by possession of the weapons and tools which aid in 
obtaining these, then by possession of the raw materials that 
serve for making weapons and tools and for other purposes, 
then by possession of the coin which purchases them as well 
as things at large, then by possession of promises to pay 
exchangeable for the coin, then by a lien on a banker, regis- 
tered in a pass-book. That is, there comes to be pleasure in 
an ownership more and more abstract and more remote from 
material satisfactions. Similarly with the sentiment of 
justice. Beginning with the joy felt in ability to use the 
bodily powers and gain the resulting benefits, accompanied 
by irritation at direct interferences, this gradually responds 
to wider relations : being excited now by the incidents of 
personal bondage, now by those of political bondage, now 
by those of class-privilege, and now by small political 
changes. Eventually this sentiment, sometimes so little 
developed in the Negro that he jeers at a liberated com- 
panion because he has no master to take care of him, 
becomes so much developed in the Englishman that the 
slightest infraction of some mode of formal procedure at a 



THE SENTIMENT OP JUSTICE. 29 

public meeting or in Parliament, which cannot intrinsically 
concern him, is vehemently opposed because in some 
distant and indirect way it may help to give possible 
powers to un-named authorities who may perhaps impose 
unforeseen burdens or restrictions. 

Clearly, then, the egoistic sentiment of justice is a sub- 
jective attribute which answers to that objective require- 
ment constituting justice — the requirement that each adult 
shall receive the results of his own nature and consequent 
actions. For unless the faculties of all kinds have free 
play, these results cannot be gained or suffered, and unless 
there exists a sentiment which prompts maintenance of the 
sphere for this free play, it will be trenched upon and the 
free play impeded. 

§ 19. While we may thus understand how the egoistic 
sentiment of justice is developed, it is much less easy to 
understand how there is developed the altruistic sentiment 
of justice. On the one hand, the implication is that the 
altruistic sentiment of justice can come into existence only 
in the course of adaptation to social life. On the other 
hand the implication is that social life is made possible only 
by maintenance of those equitable relations which imply 
the altruistic sentiment of justice. How can these reciprocal 
requirements be fulfilled ? 

The answer is that the altruistic sentiment of justice can 
come into existence only by the aid of a sentiment which 
temporarily supplies its place, and restrains the actions 
prompted by pure egoism — a pro-altruistic sentiment of 
justice, as we may call it. This has several components 
which we must successively glance at. 

The first deterrent from aggression is one which we see 
among animals at large — the fear of retaliation. Among 
creatures of the same species the food obtained by one, or 
place of vantage taken possession of by it, is in some 
measure insured to it by the dread which most others feel 



30 JUSTICE. 

of the vengeance that may follow any attempt to take it 
away; and among men, especially during early stages of 
social life, it is chiefly such dread which secures for each 
man free scope for his activities, and exclusive use of what- 
ever they bring him. 

A further restraint is fear of the reprobation likely to b6 
shown by unconcerned members of the group. Though in 
the expulsion of a " rogue " elephant from the herd, or the 
slaying of a sinning member of the flock by rooks or storks, 
we see that even among animals individuals suffer from an 
adverse public opinion; yet it is scarcely probable that 
among animals expectation of general dislike prevents 
encroachment. But among mankind, " looking before and 
after " to a greater extent, the thought of social disgrace 
is usually an additional check on ill-behaviour of man to man. 

To these feelings, which come into play before there is 
any social organization, have to be added those which 
arise after political authority establishes itself. When a 
successful leader in war acquires permanent headship, and 
comes to have at heart the maintenance of his power, there 
arises in him a desire to prevent the trespasses of his people 
one against another ; since the resulting dissensions weaken 
his tribe. The rights of personal vengeance and, as in 
feudal times, of private war, are restricted; and, 
simultaneously, there grow up interdicts on the acts which 
cause them. Dread of the penalties which follow breaches 
of these, is an added restraint. 

Ancestor- worship in general, developing, as the society 
develops, into special propitiation of the dead chiefs ghost, 
and presently the dead king's ghost, gives to the 
injunctions he uttered during life increased sanctity; and 
when, with establishment of the cult, he becomes a god, 
his injunctions become divine commands with dreaded 
punishments for breaches of them. 

These four kinds of fear co-operate. The dread of 
retaliation, the dread of social dislike, the dread of legal 



THE SENTIMENT OF JUSTICE. 31 

punishment, and the dread of divine vengeance, united in 
various proportions, form a body of feeling which checks 
the primitive tendency to pursue the objects of desire 
without regard to the interests of fellow-men. Containing 
none of the altruistic sentiment of justice, properly so 
called, this pro-altruistic sentiment of justice serves tem- 
porarily to cause respect for one another's claims, and so to 
make social co-operation possible. 

§ 20. Creatures which become gregarious tend to become 
sympathetic in degrees proportionate to their intelligences. 
Not, indeed, that the resulting sympathetic tendency is 
exclusively, or even mainly, of that kind which the words 
ordinarily imply; for in some there is little beyond 
svmr^t^yjjijear, and in others little beyond sympathy in 
ferocity. All that is meant is that in gregarious creatures 
a feeling displayed by one is apt to arouse kindred feelings 
in others, and is apt to do this in proportion as others are 
intelligent enough to appreciate the signs of the feeling. 
In two chapters of the Principles of Psychology — u Sociality 
and Sympathy " and " Altruistic Sentiments " — I have 
endeavoured to show how sympathy in general arises, and 
how there is eventually produced altruistic sympathy. 

The implication is, then, that the associated state having 
been maintained among men by the aid of the pro-altruistic 
sentiment of justice, there have been maintained the con- 
ditions under which the altruistic sentiment of justice 
itself can develop. In a permanent group there occur, 
generation after generation, incidents simultaneously 
drawing from its members manifestations of like emotions 
— rejoicings over victories and escapes, over prey jointly 
captured, over supplies of wild food discovered ; as well as 
laments over defeats, scarcities, inclemencies, &c. And to 
these greater pleasures and pains felt in common by all, and 
so expressing themselves that each sees in others the signs of 
feelings like those which he has and is displaying, must be 



32 JUSTICE. 

added the smaller pleasures and pains daily resulting from 
meals taken together, amusements, games, and from the 
not infrequent adverse occurrences which affect several 
persons at once. Thus there is fostered that sympathy 
which makes the altruistic sentiment of justice possible. 

But the altruistic sentiment of justice is slow in assuming 
a high form, partly because its primary component does not- 
become highly developed until a late phase of progress, 
partly because it is relatively complex, and partly because 
it implies a stretch of imagination not possible for low 
intelligences. Let us glance at each of these reasons. 

Every altruistic feeling presupposes experience of the 
corresponding egoistic feeling. As, until pain has been felt 
there cannot be sympathy with pain, and as one who has no 
ear for music cannot enter into the pleasure which music 
gives to others ; so, the altruistic sentiment of justice can 
arise only after the egoistic sentiment of justice has arisen. 
Hence where this has not been developed in any considerable 
degree, or has been repressed by a social life of an adverse 
kind, the altruistic sentiment of justice remains rudimentary. 

The complexity of the sentiment becomes manifest on 
observing that it is not concerned only with concrete 
pleasures and pains, but is concerned mainly with certain 
of the circumstances under which these are obtainable or 
preventible. As the egoistic sentiment of justice is gratified 
by maintenance of those conditions which render achieve- 
ment of satisfactions unimpeded, and is irritated by the 
breaking of those conditions, it results that the altruistic 
sentiment of justice requires for its excitement not only the 
ideas of such satisfactions but also the ideas of those 
conditions which are in the one case maintained and in the 
other case broken. 

Evidently, therefore, to be capable of this sentiment in 
a developed form, the faculty of mental representation must 
be relatively great. Where the feelings with which there 
is to be sympathy are simple pleasures and pains, the 



THE SENTIMENT OP JUSTICE. 



33 



higher gregarious animals occasionally display it : pity and 
generosity are from time to time felt by them as well as 
by human beings. But to conceive simultaneously not only 
the feelings produced in another, bat the plexus of acts and 
relations involved in the production of such feelings, pre- 
supposes the putting together in thought of more elements 
than an inferior creature can grasp at the same time. And 
when we come to those most abstract forms of the senti- 
ment of justice which are concerned with public arrange- 
ments, we see that only the higher varieties of men are 
capable of so conceiving the ways in which good or bad 
institutions and laws will eventually affect their spheres of 
action, as to be prompted to support or oppose them; 
and that only among these, therefore, is there excited, 
under such conditions, that sympathetic sentiment of 
justice which makes them defend the political interests of 
fellow-citizens. 

There is, of course, a close connexion between the senti- 
ment of justice and the social type. Predominant militancy, 
by the coercive form of organization it implies, alike in 
the fighting body and in the society which supports it, 
affords no scope for the egoistic sentiment of justice, but, 
contrariwise, perpetually tramples on it ; and, at the same 
time, the sympathies which originate the altruistic sentiment 
of justice are perpetually seared by militant activities. 
On the other hand, in proportion as the regime of status is 
replaced by the regime of contract, or, in other words, as 
fast as voluntary co-operation which characterizes the 
industrial type of society, becomes more general than 
compulsory co-operation which characterizes the militant 
type of society, individual activities become less restrained, 
and the sentiment which rejoices in the scope for them 
is encouraged; while, simultaneously, the ^occasions for 
repressing the sympathies become less frequent. Hence, 
during warlike phases of social life the sentiment of justice 
retrogrades, while it advances during peaceful phases, 



34 JUSTICE. 

and can reach its full development only in a permanently 
peaceful state.* 

* Permanent peace does in a few places exist, and where it exists the 
sentiment of justice is exceptionally strong and sensitive. I am glad to have 
again the occasion for pointing out that among men called uncivilized, 
there are some, distinguished by the entire absence of warlike activities, who 
in their characters put to shame the peoples called civilized. In Political 
Institutions, §§ 437 and 574, I have given eight examples of this connexion 
of facts, taken from races of different types. 



CHAPTER V. 

THE IDEA OF JUSTICE. 

§ 21. While describing the sentiment of justice the 
way has been prepared for describing the idea of justice. 
Though the two are intimately connected they may be 
clearly distinguished. 

One who has dropped his pocket-book and, turning 
round, finds that another who has picked it up will not 
surrender it, is indignant. If the goods sent home by a 
shopkeeper are not those he purchased, he protests against 
the fraud. Should his seat at a theatre be usurped during 
a momentary absence, he feels himself ill-used. Mora in g 
noises from a neighbour's poultry he complains of as 
grievances. And, meanwhile, he sympathizes with the 
anger of a friend who has been led by false statements to 
join a disastrous enterprise, or whose action at law has 
been rendered futile by a flaw in the procedure. But 
though, in these cases, his sense of justice is offended, he 
may fail to distinguish the essential trait which in each 
case causes the offence. He may have the sentiment 
of justice in full measure while his idea of justice 
remains vague. 

This relation between sentiment and idea is a matter of 
course. The ways in which men trespass on one another 
become more numerous in their kinds, and more involved. 



36 JUSTICE. 

as society grows more complex ; and they must "be experi- 
enced in their many forms, generation after generation, before 
analysis can make clear the essential distinction between 
legitimate acts and illegitimate acts. The idea emerges 
and becomes definite in the course of the experiences 
that action may be carried up to a certain limit without 
causing resentment from others, but if carried beyond that 
limit produces resentment. Such experiences accumulate ; 
and gradually, along with repugnance to the acts which 
bring reactive pains, there arises a conception of a limit 
to each kind of activity up to which there is freedom 
to act. But since the kinds of activity are many and 
become increasingly various with the development of social 
life, it is a long time before the general nature of the 
limit common to all cases can be conceived.* 

A further reason for this slowness of development should 
be recognized. Ideas as well as sentiments must, on the 
average, be adjusted to the social state. Hence, as war has 
been frequent or habitual in nearly all societies, such ideas 
of justice as have existed have been perpetually con- 
fused by the conflicting requirements of internal amity and 
external enmity. 

§ 22. Already it has been made clear that the idea of 
justice, or at least the human idea of justice, contains two 

* The genesis of the idea of simple limits to simple actions is exhibited to 
us by intelligent animals, and serves to elucidate the process in the case of 
more complex actions and less obvious limits. I refer to the dogs of Con- 
stantinople, among which, if not between individuals yet between groups of 
individuals, there are tacit assertions of claims and penalties for invasions of 
claims. This well-known statement has been recently verified in a striking 
way in the work of Major E. C. Johnson, On the Track of the Crescent. He 
says (pp. 58-9) : — " One evening I was walking [in Constantinople] with an 
English officer of gendarmerie when a bitch came up and licked his hand. 
. . . She followed us a little way, and stopped short in the middle of the 
street. She wagged her tail, and looked wistfully after us, but never stirred 
when we called her. A few nights afterwards . . . the same bitch . . . 
recognized me . . . and followed me to the boundary of her district." 



f 



THE IDEA OF JUSTICE. 37 



elements. On the one hand, there is that positive element 
implied by each man's recognition of his claims to unimpeded 
activities and the benefits they bring. On the other hand, 
there is that negative element implied by the consciousness 
of limits which the presence of other men having like 
claims necessitates-^Two opposite traits in these two 
components especially arrest the attention. 

Inequality is the primordial ideal suggested. For if the 
principle is that each shall receive the benefits and evils due 
to his own nature and consequent conduct, then, since men 
differ in their powers, there must be differences in the results 
of their conduct. Unequal amounts of benefit are implied. 

Mutual limitations to men's actions suggest a contrary 
idea. When it is seen that if each pursues his ends 
regardless of his neighbour's claims, quarrels must result, 
there arises the consciousness of bounds which must be set 
to the doings of each to avoid the quarrels. Experience 
shows that these bounds are on the average the same for 
all. And the thought of spheres of action bounded by 
one another, which hence results, involves the conception 
of equality. 

Unbalanced appreciations of these two factors in human 
justice, lead to divergent moral and social theories, which 
we must now glance at. 

§ 23. In some of the rudest men the appreciations 
are no higher than those which we see among inferior 
gregarious animals. Here the stronger takes what he 
pleases from the weaker without exciting general repro- 
bation — as among the D$gribs ; while, elsewhere, there is 
practised and tacitly approved something like communism 
— as among the Fuegians. But where habitual war has 
developed political organization, the idea of inequality 
becomes predominant. If not among the conquered, who 
are made slaves, yet among the conquerors, who naturally 



38 JUSTICE. 

think of that which conduces to their interest as that which 
ought to be, there is fostered this element in the conception 
of justice which implies that superiority shall have the 
benefits of superiority. 

Though the Platonic dialogues may not be taken as 
measures of Greek belief, yet we may gather from them 
what beliefs were general. Glaucon, describing a current 
opinion, says : — 

" This, as they affirm, is the origin and nature of justice : — there is a 
mean or compromise between the best of all, which is to do and not to suffer 
injustice, and the worst of all, which is to suffer without the power of 
retaliation ; and justice, being the mean between the two, is tolerated not as 
good, but as the lesser evil." And immediately afterwards it is said 1^iat 
men " are only diverted into the path of justice by the force of law." * J 

In this significant passage several things are to be n6ted. 
There is first a recognition of the fact, above indicated, that 
at an early stage the practice of justice is initiated by the 
dread of retaliation, and the conviction, suggested by 
experience, that on the whole it is desirable to avoid 
aggression and to respect the limit which compromise 
implies : there is no thought of intrinsic flagitiousness in 
aggression, but only of its impolicy. Further, the limit to 
each man's actions, described as " a mean or compromise," 
and respect for which is called "the path of justice/'' is 
said to be established only " by the force of law." Law 
is not considered as an expression of justice otherwise 
cognizable, but as itself the source of justice; and hence 
results the meaning of a preceding proposition, that it is 
just to obey the law. Thirdly, there is an implication that 
were it not for retaliation and legal penalties, the stronger 
might with propriety take advantage of the weaker. There 
is a half-expressed belief that superiority ought to have 
all the advantages which superiority can take : the idea of 
inequality occupies a prominent place, while the idea of 
equality makes no definite appearance. 

What was the opinion of Plato, or rather of Socrates, on 
the matter is not very easy to find out. Greek ideas on 



THE IDEA OF JUSTICE. 39 

many matters had not yet reached the stage of definiteness, 
and throughout the dialogues the thinking is hazy. Justice, 
which is in some places exemplified by honesty, is elsewhere 
the equivalent of virtue at large, and then (to quote from 
Jowett's summary) is regarded as " universal order or well 
being, first in the State, and secondly in the individual/' 
This last, which is the finished conclusion, implies estab- 
lished predominance of a ruling class and subjection of 
the rest. Justice consists "in each of the three classes 
doing the work of its own class : " carpenter, shoemaker, 
or what not, " doing each his own business, and not 
another's ; " and all obeying the class whose business it is 
to rule.* Thus the idea of justice is developed from the 
idea of inequality. Though there is some recognition of 
equality of positions and of claims among members of the 
same class, yet the regulations respecting community of 
wives &c. in the guardian-class, have for their avowed 
purpose to establish, even within that class, unequal 
privileges for the benefit of the superior. 

That the notion of justice had this general character 
among the Greeks, is further shown by the fact that it 
recurs in Aristotle. In Chapter Y. of his Politics, he 
concludes that the relation of master and slave is both 
advantageous and just. 

But now observe that though in the Greek conception of 

* On another page there is furnished a typical example of Socratic 
reasoning. It is held to be a just " principle that individuals are neither to 
take what is another's, nor to be deprived of what is their own." From this 
it is inferred that justice consists in "having and doing what is a man's 
own ; " and then comes the further inference that it is unjust for one man 
to assume another's occupation, and " force his way" out of one class into 
another. Here, then, because a man's own property and his own occupation 
are both called his own, the same conclusion is drawn concerning both. Two 
fallacies are involved — the one that a man can " own " a trade in the same 
way that he owns a coat, and the other that because he may not be deprived 
of the coat he must be restricted to the trade. The Platonic dialogues are 
everywhere vitiated by fallacies of this kind, caused by confounding words 
with things — unity of name with unity of nature. 



40 JUSTICE. 

justice there predominates the idea of inequality, while the 
idea of equality is inconspicuous, the inequality refers, not 
to the natural achievement of greater rewards by greater 
merits, but to the artificial apportionment of greater rewards 
to greater merits. It is an inequality mainly established by 
authority. The gradations in the civil organization are 
of the same nature as those in the military organization. 
Eegimentation pervades both; and the idea of justice is 
conformed to the traits of the social structure. 

And this is the idea of justice proper to the militant type 
at large, as we are again shown throughout Europe in sub- 
sequent ages. It will suffice to point out that along with 
the different law-established positions and privileges of 
different ranks, there went gradations in the amounts paid 
in composition for crimes, according to the rank of the 
injured. And how completely the notion of justice was 
determined by the notion of rightly-existing inequalities, is 
shown by the condemnation of serfs who escaped into the 
towns, and were said to have " unjustly " withdrawn them- 
selves from the control of their lords. 

Thus, as might be expected, we find that while the 
struggle for existence between societies is going on 
actively, recognition of the primary factor in justice which 
is common to life at large, human and sub-human, is very 
imperfectly qualified by recognition of the secondary factor. 
That which we may distinguish as the brute element in the 
conception is but little mitigated by the human element. 

§ 24. All movements are rhythmical, and, among others, 
social movements, with their accompanying doctrines. 
After that conception of justice in which the idea of 
inequality unduly predominates, comes a conception in 
which the idea of equality unduly predominates. 

A recent example of such reactions is furnished by the 
ethical theory of Bentham. As is shown by the following 



THE IDEA OF JUSTICE. 41 

extract from Mr. Mill's Utilitarianism (p. 91), the idea of 
inequality here entirely disappears. 

The Greatest-Happiness Principle is a mere form of words without rational 
signification, unless one person's happiness, supposed equal in degree (with 
the proper allowance made for kind), is counted for exactly as much as 
another's. Those conditions being supplied, Bentham's dictum, " everybody 
to count for one, nobody for more than one," might be written under the 
principle of utility as an explanatory commentary. 

Now though Bentham ridicules the taking of justice as 
our guide, saying that while happiness is an. end intelligible 
to all, justice is a relatively unintelligible end, yet he tacitly 
asserts that his principle — "everybody to count for one, 
nobody for more than one," is just ; since, otherwise, he 
would be obliged to admit that it is unjust, and we may not 
suppose he would do so. Hence the implication of his 
doctrine is that justice means an equal apportionment of 
the benefits, material and immaterial, which men's activi- 
ties bring. There is no recognition of the propriety of 
inequalities in men's shares of happiness, consequent on 
inequalities in their faculties or characters. 

This is the theory which Communism would reduce to 

practice. From one who knows him, I learn that Prince 

Krapotkin blames the English socialists because they do 

not propose to act out the rule popularly worded as " share 

and share alike." In a recent periodical, M. de Laveleye 

summed up the communistic principle as being " that the 

individual works for the profit of the State, to which he 

hands over the produce of his labour for equal division 

among all." In the communistic Utopia described in Mr. 

Bellamy's Looking Backward, it is held that each "shall 

make the same effort," and that if by the same effort, bodily 

or mental, one produces twice as much as another, he is not 

to be advantaged by the difference. The intellectually or 

physically feeble are to be quite as well off as others : the 

assertion being that the existing regime is one of "robbing 

the incapable class of their plain right in leaving them 

unprovided for." 

The principle of inequality is thus denied absolutely. It 
3 



42 JUSTICE, 

is assumed to be unjust that superiority of nature shall 
bring superiority of results, or, at any rate, superiority of 
material results ; and as no distinction appears to be made 
in respect either of physical qualities or intellectual qualities 
or moral qualities, the implication is not only that strong and 
weak shall fare alike, but that foolish and wise, worthy and 
unworthy, mean and noble, shall do the same. For if, 
according to this conception of justice, defects of nature, 
physical or intellectual, ought not to count, neither ought 
moral defects, since they are all primarily inherited. 

And here, too, we have a deliberate abolition of that 
cardinal distinction between the ethics of the family and 
the ethics of the State, emphasized at the outset : an aboli- 
tion which, as we saw, must eventuate in decay and disap- 
pearance of the species or variety in which it takes place. 

§ 25. After contemplating these divergent conceptions 
of justice, in which the ideas of inequality and equality 
almost or quite exclude one another, we are now prepared 
for framing a true conception of justice. 

In other fields of thought it has fallen to my lot to show 
that the right view is obtained by co-ordinating the 
antagonistic wrong views. Thus, the association-theory of 
intellect is harmonized with the transcendental theory on 
perceiving that when, to the effects of individual experiences, 
are added the inherited effects of experiences received by all 
ancestors, the two views become one. So, too, when the 
moulding of feelings into harmony with requirements, gener- 
ation after generation, is recognized as causing an adapted 
moral nature, there results a reconciliation of the expediency- 
theory of morals with the intuitional theory. And here we 
see that a like mutual correction occurs with this more 
special component of ethics now before us. 

For if each of these opposite conceptions of justice is 
accepted as true in part, and then supplemented by the 
other, there results that conception of justice which arises 
on contemplating the laws of life is carried on in the social 



THE IDEA OP JUSTICE. 43 

state. The equality concerns the mutually-limited spheres 
of action which must be maintained if associated men are 
to co-operate harmoniously. The inequality concerns the 
results which each may achieve by carrying on his actions 
within the implied limits. No incongruity exists when the 
ideas of equality and inequality are applied the one to the 
bounds and the other to the benefits. Contrariwise, the two 
may be, and must be, simultaneously asserted. 

Other injunctions which ethics has to utter do not here 
concern us. There are the self-imposed requirements and 
limitations of private conduct, forming that large division 
of ethics treated of in Part III.; and there are the demands 
and restraints included under Negative Beneficence and 
Positive Beneficence, to be hereafter treated of, which are 
at once self-imposed and in a measure imposed by public 
opinion. But here we have to do only with those claims 
and those limits which have to be maintained as conditions 
to harmonious co-operation, and which alone are to be 
enforced by society in its corporate capacity. 

§ 26. Any considerable acceptance of so definite an idea 
of justice is not to be expected. It is an idea appropriate 
to an ultimate state, and can be but partially entertained 
during transitional states ; for the prevailing ideas must, 
on the average, be congruous with existing institutions 
and activities. 

The two essentially-different types of social organization, 
militant and industrial, based respectively on status and on 
contract, have, as we have above seen, feelings and beliefs 
severally adjusted to them ; and the mixed feelings and 
beliefs appropriate to intermediate types, have continually 
to change according to the ratio between the one and the 
other. As I have elsewhere shown,* during the thirty — or 
rather forty — years' peace, and consequent weakening of 
the militant organization, the idea of justice became clearer : 
* Principles of Sociology, §§ 266-7 ; Political Institutions, §§ 573-4 and 559. 



44 JUSTICE. 

coercive regulations were relaxed and each man left more 
free to make the best of himself. But since then, the 
re-development of militancy has caused reversal of these 
changes ; and, along with nominal increases of freedom, 
actual diminutions of freedom have resulted from multiplied 
restrictions and exactions. The spirit of regimentation 
proper to the militant type, has been spreading throughout 
the administration of civil life. An army of workers with 
appointed tasks and apportioned shares of products, which 
socialism, knowingly or unknowingly, aims at, shows in 
civil life the same characters as an army of soldiers with 
prescribed duties and fixed rations shows in military 
life ; and every act of parliament which takes money from 
the individual for public purposes and gives him public 
benefits, tends to assimilate the two. Germany best shows 
this kinship. There, where militancy is most pronounced, 
and where the regulation of citizens is most elaborate, 
socialism is most highly developed; and from the head of 
the German military system has now come the proposal 
of regimental regulations for the working classes through- 
out Europe. 

Sympathy which, a generation ago, was taking the shape 
of justice, is relapsing into the shape of generosity ; and 
the generosity is exercised by inflicting injustice. Daily 
legislation betrays little anxiety that each shall have that 
which belongs to him, but great anxiety that he shall have 
that which belongs to somebody else. For while no energy 
is expended in so reforming our judicial administration 
that everyone may obtain and enjoy all he has earned, 
great energy is shown in providing for him and others 
benefits which they have not earned. Along with that 
miserable laissez-faire which calmly looks on while men 
ruin themselves in trying to enforce by law their equitable 
claims, there goes activity in supplying them, at other 
men's cost, with gratis novel-reading I 



CHAPTER VI. 
THE FOEMULA OF JUSTICE. 

§ 27. ^After tracing up the evolution of justice in its 
simple form, considered objectively as a condition to the 
maintenance of life; after seeing how justice as so con- 
sidered becomes qualified by a new factor when the life is 
gregarious, more especially in the human race ; and after 
observing the corresponding subjective products — the senti- 
ment of justice and the idea of justice — arising from converse 
with this condition ; we are now prepared for giving to the 
conclusion reached a definite form. We have simply to 
find a precise expression for the compromise described in 
the last chapter. 

The formula has to unite a positive element with a 
negative element. It must be positive in so far as it asserts 
for each that, since he is to receive and suffer the good and 
evil results of his actions, he must be allowed to act. And , 
it must be negative in so far as, by asserting this of 
everyone, it implies that each can be allowed to act only 
under the restraint imposed by the presence of others 
having like claims to act. Evidently the positive element 
is that which expresses a pre-requisite to life in general, 
and the negative element is that which qualifies this pre- 
requisite in the way required when, instead of one life 
carried on alone, there are many lives carried on together. 

Hence, that which we have to express in a precise way, 



46 JUSTICE. 

is the liberty of each limited /©nly by the like liberties of 
all. This we do by saying :-f-Every man is free to do that 
which he wills, provided he infringes not the equal freedom 
of any other man. 

§ 28. A possible misapprehension must be guarded 
against. There are acts of aggression which the formula 
is presumably intended to exclude, which apparently it does 
not exclude. It may be said that if A strikes B, then, so 
long as B is not debarred from striking A in return, no 
greater freedom is claimed by the one than by the other; or 
it may be said that if A has trespassed on B's property, the 
requirement of the formula has not been broken so long as 
B can trespass on A's property. Such interpretations, 
however, mistake the essential meaning of the formula, 
which we at once see if we refer back to its origin. 

For the truth to be expressed is that each in carrying on 
the actions which constitute his life for the time being, and 
conduce to the subsequent maintenance of his life, shall not 
be impeded further than by the carrying on of those kindred 
actions which maintain the lives of others. It does not 
countenance a superfluous interference with another's life, 
committed on the ground that an equal interference may 
balance it. Such a rendering of the formula is one which 
implies greater deductions from the lives of each and all 
than the associated state necessarily entails; and this is 
obviously a perversion of its meaning. 

If we bear in mind that though not the immediate end, 
the greatest sum of happiness is the remote end, we see 
clearly that the sphere within which each may pursue happi- 
ness has a limit, on the other side of which lie the similarly 
limited spheres of action of his neighbours ; and that he 
may not intrude on his neighbour's spheres on condition 
that they may intrude on his. Instead of justifying 
aggression and counter-aggression, the intention of the 



THE F0EMULA OF JUSTICE. 4/ 

formula is to fix a bound which may not be exceeded on 
either side. 

§ 29. And here, on this misapprehension and this recti- 
fication, an instructive comment is yielded by the facts of 
social progress. For they show that, in so far as justice is 
concerned, there has been an advance from the incorrect 
interpretation to the correct interpretation. 

In early stages we see habitual aggression and counter- 
aggression : now between societies and now between indi- 
viduals. Neighbouring tribes fight about the limits to 
their territories, trespassing first on one side and then on 
the other ; and further fights are entailed by the require- 
ment that mortality suffered shall be followed by mortality 
inflicted. In such acts of revenge and re-revenge there is 
displayed a vague recognition of equality of claims. This 
tends towards recognition of definite limits, alike in respect 
of territory and in respect of bloodshed ; so that in some 
cases a balance is maintained between the numbers of 
deaths on either side. 

Along with this growing conception of inter-tribal justice 
goes a growing conception of justice among members of 
each tribe. At first it is the fear of retaliation which 
causes such respect for one another's persons and posses- 
sions as exists. The idea of justice is that of a balancing 
of injuries — " an eye for an eye and a tooth for a tooth." 
This remains the idea during early stages of civilization. 
After justice, as so conceived, ceases to be enforced by 
the aggrieved person himself, it is this which he asks to 
have enforced by the constituted authority. The cry to 
the ruler for justice is the cry for punishment — for the 
infliction of an injury at least as great as the injury 
suffered, or, otherwise, for a compensation equivalent to 
the loss. Thus the equality of claims is but tacitly asserted 
in the demand to have rectified, as far as may be, the 
breaches of equality. 



48 JUSTICE. 

How there tends gradually to emerge from this crude 
conception of justice the finished conception of justice, it 
seems scarcely needful to explain. The true idea is 
generated by experience of the evils which accompany 
the false idea. Naturally, the perception of the right 
restraints on conduct becomes clearer as respect for these 
restraints is forced on men, and so rendered more habitual 
and more general. Men's incursions into one another's 
spheres constitute a kind of oscillation, which, violent at 
the outset, becomes gradually less with the progress 
towards a relatively peaceful state of society. As the 
oscillations decrease there is an approach to equilibrium ; 
and along with this approach to equilibrium comes approach 
to a definite theory of equilibrium. 

Thus that primitive idea of justice in which aggression 
is to be balanced by counter-aggression, fades from 
thought as fast as it disappears from practice ; and there 
comes the idea of justice here formulated, in which are 
recognized such limitations of conduct as exclude aggres- 
sions altogether. 

Note. For the views of Kant concerning the ultimate 
principle of Right, see Appendix A. 



CHAPTER YII. 

THE AUTHOEITY OF THIS FOBMULA. 

§ 30. Before going further we must contemplate this 
formula under all its aspects,, for the purpose of seeing 
what may be said against it as well as what may be said in 
its favour. 

By those who have been brought up in the reigning 
school of politics and morals, nothing less than scorn is 
shown for every doctrine which implies restraint on the 
doings of immediate expediency or what appears to be 
such. Along with avowed contempt for " abstract prin- 
ciples" and generalizations, there goes unlimited faith in 
a motley assemblage of nominees of caucuses, ruled by 
ignorant and fanatical wire-pullers ; and it is thought 
intolerable that its judgments should be in any way sub- 
ordinated by deductions from ethical truths. 

Strangely enough we find in the world of science, too, 
this approval of political empiricism and disbelief in any 
other guidance. Though it is a trait of the scientific mind 
to recognize causation as universal, and though this 
involves a tacit admission that causation holds throughout 
the actions of incorporated men, this admission remains 
a dead letter. Notwithstanding the obvious fact that if 
there is no causation in public affairs one course must be 
as good as another ; and notwithstanding the obvious fact 



50 JUSTICE. 

that to repudiate this implication is to say that some cause 
determines the goodness or badness of this or that policy ; 
no effort is made to identify the causation. Contrariwise, 
there is ridicule of those who attempt to find a definite 
expression for the fundamental principle of harmonious 
social order. The differences among their views are 
emphasized, rather than the traits which their views .have 
in common ; just as, by adherents of the current creed, 
the differences among men of science are emphasized, 
instead of their essential agreements. 

Manifestly, then, before proceeding we must deal with 
the more important objections urged against the formula 
reached in the last chapter. 

§ 31. Every kind of evolution is from the indefinite to 
the definite; and one of the implications is that a distinct 
conception of justice can have arisen but gradually. Already 
the advance towards a practical recognition of justice has 
been shown to imply a corresponding advance towards 
theoretical recognition of it. It will be desirable here to 
observe more closely this growth of the consciousness that 
the activities carried on for self-conservation by each, are 
to be restrained by the like activities of all. 

And first let us note a fact which might have been fitly 
included at the close of the last chapter — the fact that where 
men are subject to the discipline of a peaceful social life 
only, uninterfered with by the discipline which inter-social 
antagonisms entail, they quickly develop this consciousness. 
Entirely pacific tribes, uncivilized in the common sense of 
the word as some of them are, show a perception of that 
which constitutes equity, far clearer than the perception 
displayed by civilized peoples, among whom the habits of 
industrial life are qualified more or less largely by the 
habits of militant life. The amiable and conscientious 
Lepcha, who, while he does not desire to be killed himself, 
refuses absolutely to assist in killing others ; the Hos 
full of social virtues, who may be driven almost to suicide 



THE AUTHORITY OF THIS FORMULA. 51 

by tlie suspicion that lie has committed a theft ; the lowly 
Wood-Veddah, who can scarcely conceive it possible that 
one man should willingly hurt another, or take that which 
does not belong to him ; — these and sundry others show that 
though there is not intelligence enough to frame a con- 
ception of the fundamental social law, there is yet a strong 
sentiment responding to this law, and an understanding of 
its special applications. Where the conditions are such as 
do not require that respect for the claims of fellow- tribes- 
men shall go along with frequent tramplings on the claims 
of men outside the tribe, there grow up simultaneously in 
each individual a regard for his own claims and a regard for 
the claims of other individuals. 

It is only where the ethics of amity are entangled with the 
ethics of enmity, that thoughts about conduct are confused 
by the necessities of compromise. The habit of aggression 
outside the society is at variance with the habit of non- 
aggression inside the society, and at variance with recogni- 
tion of the law implied by non-aggression. A people which 
gives to its soldiers the euphemistic title " defenders of 
their country," and then exclusively uses them as invaders 
of other countries — a people which so far appreciates 
the value of life that within its bounds it forbids prize- 
fights, but beyond its bounds frequently takes scores of 
lives to avenge one life — a people which at home cannot 
tolerate the thought that inferiority shall bear the self- 
inflicted evils of inferiority, but abroad has no compunction 
in using bullet and bayonet to whatever extent is needful 
for conquest of the uncivilized, arguing that the inferior 
should be replaced by the superior; — such a people must 
think crookedly about the ultimate principles of right and 
wrong. Now enunciating the code appropriate to its in- 
ternal policy and now the code appropriate to its external 
policy, it cannot entertain a consistent set of ethical ideas. 
All through the course of that conflict of races which, by 
peopling the Earth with the strongest, has been a preli- 



52 JUSTICE. 

urinary to high civilization, there have gone on these in- 
congruous activities necessitating incongruous sets of be- 
liefs, and making a congruous set of beliefs inadmissible. 

Nevertheless, where the conditions have allowed, the 
conception of justice has slowly evolved to some extent, and 
found for itself approximately true expressions. In the 
Hebrew commandments we see interdicts which, while 
they do not overtly recognize the positive element in justice, 
affirm in detail its negative element — specify limits to 
actions, and, by prescribing these limits for all Hebrews, 
tacitly assert that life, property, good name, &c, must be 
respected in one as in another. In a form which makes no 
distinction between generosity and justice, the Christian 
maxim — " Do unto others as ye would that others should 
do unto you," vaguely implies the equality of men's claims 
• — implies it, indeed, in too • sweeping a manner, since it 
recognizes no reason for inequality in the shares of good 
respectively appropriate to men : there is in it no direct 
recognition of any claim which each has to the results of 
his own activities, but only an implied recognition of such 
claims in the persons of others, and by implication a pre- 
scribing of limits. Taking no note of intermediate forms 
of the conception, we may instance among modern forms 
the one which it took in the mind of Kant. His rule — " Act 
only on that maxim whereby thou canst at the same time will 
that it should become a universal law," is, indeed, an allo- 
tropic form of the Christian rule. The suggestion that every 
other man must be imagined to act after a manner similar 
to the manner proposed, joined with the tacit implication 
that if suffering would be caused, the act should not be 
performed (Kant is classed as an anti-utilitarian !), indirectly 
assumes that the welfares of other men are to be considered 
as severally of like values with the welfare of the actor — an 
assumption which, while it covers the requirements of 
Justice, covers much more. 

But now leaving these indications of the beliefs of those 



THE AUTHOEITY OF THIS FORMULA. 53 

who have approached the question from the religious side 
aud from the ethical side, let us consider the beliefs of 
those who have approached it from the legal side. 

§ 32. Of course, when jurists set forth first principles, 
or appeal to them, they have in mind the bases of justice, 
whether they use the word justice or not ; since systems of 
justice, considered in general or in detail, form their sub- 
ject matters of their works. This premised, let us observe 
the doctrines from time to time enunciated. 

Sir Henry Maine, speaking of certain dangers which 
threatened the development of Roman law, says : — 

" But at any rate they had adequate protection in their theory of Natural 
Law. For the Natural Law of the jurisconsults was distinctly conceived by 
them as a system which ought gradually to absorb civil laws, without super- 
ceding them so long as they remained unrepealed The value and 

serviceableness of the conception arose from its keeping before the mental 
vision a type of perfect law, and from its inspiring the hope of an indefinite 
approximation to it." (Ancient Law, pp. 76-7, 3rd edition.) 
In the spirit of these Roman lawyers, one of our early 
judges of high repute, Chief Justice Hobart, uttered the 
emphatic assertion — 

"Even an Act of Parliament made against natural equity, as to make a 
man Judge in his own case, is void in itself, for jura naturce sunt immutabilia, 
and they are leges legum." (HobarVs Reports, Lond. 1641, p. 120.) 
So said a great authority of later date. Dominated by 
a creed which taught that natural things are supernaturally 
ordained, Blackstone wrote : — 

11 This law of nature being coeval with mankind, and dictated by God 
himself, is of course superior in obligation to any other .... no human 
laws are of any validity if contrary to this ; and such of them as are valid 
derive all their force and all their authority, mediately or immediately, from 
this original." (Chitty's Blackstone, Vol. I., pp. 37-8.) 
Of like character is another verdict, given by one who 
treated of legislation from a philosophical point of view. 
Sir James Mackintosh defines a law of nature as being — 
11 a supreme, invariable, and uncontrollable rule of conduct to all men . . . 
It is ' the law of nature,' because its general precepts are essentially adapted 
to promote the happiness of man . . . because it is discoverable by natural 
reason, and suitable to our natural constitution : and because its fitness and 



54 JUSTICE. 

wisdom are founded on the general nature of human beings, and not on any 
of those temporary and accidental situations in which they may be placed." 
(Mackintosh's Miscellaneous Works, Vol. I., p. 346.) 

Even the despotically-minded Austin, idolized by the 
lawyers of our days as having elaborated a theory of un- 
limited legislative authority, is obliged to confess that the 
ultimate justification for the governmental absolutism he 
defends, is ethical. Behind the authority, monarchical, 
oligarchic, or parlimentary, which enacts laws represented 
as supreme, there is at length recognized an authority to 
which it is subordinate — an authority, therefore, which is 
not derived from human law, but is above human law, — 
an authority which is by implication ascribed, if not to divine 
enactment, then to the nature of things. 

Paying some respect to these dicta (to which I may add 
that of the German jurists with their Naturrecht) does not 
imply unreasoning credulity. We may reasonably suspect 
that, however much they may be in form open to criticism, 
they are true in essence. 

§ 33. " But these are a priori beliefs," will be the 
contemptuous comment of many. " They all exemplify 
that vicious mode of philosophizing which consists in evol- 
ving truths out of the depths of one's own consciousness," 
will be said by those who hold that general truths can be 
reached only by conscious induction. Curiously illustrating 
the law that all movement is rhythmical, the absolute faith 
of past times in a priori reasoning, has given place to 
absolute disbelief ; and now nothing is to be accepted 
unless it is reached a posteriori. Any one who contem- 
plates the average sweep of human progress, may feel 
tolerably certain that this violent reaction will be followed 
by a re-reaction ; and he may infer that both of these anti- 
thetical modes of reasoning, while they have their abuses, 
have also their uses. 
Whence come a priori beliefs — how happen they to arise? 



THE AUTHORITY OF THIS FORMULA. 55 

I do not of course refer to beliefs peculiar to particular 
persons, which may be results of intellectual perversions. 
I refer to those which are general, if not universal- 
beliefs which all, or nearly all, do not profess to base on 
evidence, and yet which they hold to be certain. The origin 
of such beliefs is either natural or supernatural. If super- 
natural, then unless, by believers in a devil, they are regarded 
as diabolically insinuated into men to mislead them, they 
must be regarded as divinely implanted for purposes of 
guidance, and therefore to be trusted. If, not satisfied with 
an alleged supernatural derivation, we ask for a natural 
derivation, then our conclusion must be that these modes 
of thought are determined by converse with the relations 
of things. One who adheres to the current creed with its 
good and evil agents, is not without a feasible reason for 
denying the value of a priori beliefs ; but one who accepts 
the doctrine of Evolution is obliged, if he is consistent, to 
admit that a priori beliefs entertained by men at large, must 
have, arisen, if not from the experiences of each individual, 
then from the experiences of the race. When, to take a 
geometrical illustration, it is affirmed that two straight 
lines cannot inclose a space ; and when it is admitted, as it 
must be, that this truth cannot be established a posteriori, 
since not in one case, still less in many cases, can lines be 
pursued out into infinity for the purpose of observing what 
happens to the space between them; then the inevitable ad- 
mission must be that men's experiences of straight lines (or 
rather, having regard to primitive times, let us say objects 
approximately straight) have been such as to make impossible 
the conception of space as inclosed by two straight lines, — 
have been such as to make it imperative to think of the lines 
as bending before the space can be inclosed. Unques- 
tionably, on the Evolution-hypothesis, this fixed intuition 
must have been established by that intercourse with things 
which, throughout an enormous past, has, directly or in- 
directly, determined the organization of the nervous 



56 JUSTICE. 

system and certain resulting necessities of thought ; and the 
a priori beliefs determined by these necessities differ, from 
a posteriori beliefs simply in this, that they are products 
of the experiences of innumerable successive individuals 
instead of the experiences of a single individual. 

If, then, from the Evolution point of view, this is un- 
doubtedly so with those simple cognitions which concern 
Space, Time, and Number, must we not infer that it is so, in 
large measure, with those more complex cognitions which 
concern human relations ? I say " in large measure; " partly 
because the experiences are in this case far more involved 
and superficially varied, and cannot have produced any- 
thing like such definite effects on the nervous organization ; 
and partly because, instead of reaching back through an 
immeasurable series of ancestral beings, they reach back 
through a part of the human race only. For these ex- 
periences, hardly traceable during early stages, become 
marked and coherent only where amicable social co-opera- 
tion forms a considerable factor in social life. Hence 
these cognitions must be comparatively indefinite. 

The qualification to be therefore made is that these ethical 
intuitions, far more than the mathematical intuitions, have 
to be subjected to methodic criticism. Even the judgments 
of immediate perception respecting straight lines, curves, 
angles, and so forth, have to be tested in ways devised by 
conscious reason : one line is perceived to be perpendicular 
to another with approximate truth, but complete perpen- 
dicularity can be ascertained only by the aid of a geome- 
trical theorem. Evidently, then, the relatively vague internal 
perceptions which men have of right human relations, are 
not to be accepted without deliberate comparisons, rigorous 
cross-examinations, and careful testings of all kinds : a 
conclusion made obvious by the numerous minor disagree- 
ments which accompany the major agreement. 

Thus even had the foregoing dicta, and along with them 
the law of equal freedom as recently formulated, no other . 



THE AUTHORITY OF THIS FORMULA. 57 

than a priori derivations (and this is far from being the fact) 
it would still be rational to regard them as adumbrations 
of a truth, if not literally true. 

§ 34. But now mark that those who, in this case, urge 
against a system of thought the reproach that it sets out 
with an a priori intuition, may have the reproach hurled 
back upon them with more than equal force. 

Alike in philosophy, in politics, and in science, we may 
see that the inductive school has been carried by its violent 
reaction against the deductive school to the extreme of 
assuming that conscious induction suffices for all purposes, 
and that there is no need to take anything for granted. 
Though giving proof of an alleged truth consists in 
showing that it is included in some wider established truth, 
and though, if this wider truth is questioned, the process 
is repeated by demonstrating that a still wider truth in- 
cludes it ; yet it is tacitly assumed that this process may 
go on for ever without reaching a widest truth, which 
cannot be included in any other, and therefore cannot 
be proved. And the result of making this unthinking 
assumption is the building up of theories which, if they 
have not a priori beliefs as their bases, have no bases at 
all. This we shall find to be the case with the utilitarian 
systems of ethics and politics.* 

For what is the ultimate meaning of expediency ? When 
it is proposed to guide ourselves empirically, towards what 

* There are some who not only decline to admit any truths as necessary, 
but deny necessity itself ; apparently without consciousness of the fact that 
since, in reasoning, every step from premises to conclusion has no other 
warrant than perception of the necessity of dependence, to deny necessity 
is to deny the validity of every argument, including that by which it is 
proposed to prove the absence of necessity ! I recently read a comment 
on the strange resurrection of a doctrine said to have been long ago killed. 
Doubtless remarkable enough, if true. I know only one thing more 
remarkable, and that is the way in which a system of thought may be seen 
going about in high spirits after having committed suicide 1 



58 JUSTICE. 

are we to guide ourselves ? If our course must always be 
determined by the merits of the case, by what are the merits 
to be judged ? " By conduciveness to the welfare of society, 
or the good of the community," will be the answer. It will 
not be replied that the merit to be estimated means increase 
of misery ; it will not be replied that it means increase of a 
state of indifference, sensational and emotional ; and it must 
therefore be replied that it means increase of happiness. 
By implication, if not avowedly, greatest happiness is the 
thing to be achieved by public action, or private action, or 
both. But now whence comes this postulate ? Is it an 
inductive truth ? Then where and by whom has the induc- 
tion been drawn ? Is it a truth of experience derived from 
careful observations ? Then what are the observations, and 
when was there generalized that vast mass of them on which 
all politics and morals should be built ? Not only are there 
no such experiences, no such observations, no such induc- 
tion, but it is impossible that any should be assigned. Even 
were the intuition universal, which it is not (for it has been 
denied by ascetics in all ages and places, and is demurred 
to by an existing school of moralists), it would still have 
no better warrant than that of being an immediate dictum 
of consciousness. 

More than this is true. There is involved a further belief 
no less a priori. Already I have referred to Bentham's 
rule — " Everybody to count for one, nobody for more than 
one," joined with Mr. Mill's comment that the greatest- 
happiness principle is meaningless unless " one person's 
happiness ... is counted for exactly as much as another's/' 
Hence the Benthamite theory of morals and politics posits 
this as a fundamental, self-evident truth. And this tacit 
assumption that one man's claim to happiness is as good as 
another's, has been recently put into more concrete shape 
by Mr. Bellamy, who says : — 

" The world, and everything that is in it, will ere long be recognized as 



THE AUTHORITY OP THIS FORMULA. 59 

the common property of all, and undertaken and administered for the equal 
benefit of all." 

That is to say, whether formulated by Bentham himself, or 
by Mill as his expositor, or by a communistic disciple, the 
assumption is that all men have equal rights to happiness. 
For this assumption no warrant is given, or can be given, 
other than alleged intuitive perception. It is an a priori 
cognition. 

" But it is not a cognition properly so-called," will 
probably be asserted by those who wish to repudiate the 
communistic implication, at the same time that they wish to 
repudiate the a priori reasoning. " It is merely the product 
of perverted fancy. Happiness itself cannot be divided out 
either equally or unequally, and the greatest happiness is 
not to be obtained by equal division of the means to happi- 
ness, or the benefits, as they are above called. It is to be 
obtained rather by giving a larger share of means to those 
who are most capable of happiness." Kaising no question 
about the practicability of such an adjustment, let us simply 
ask the warrant for this assertion. Is it an inductive 
warrant ? Has anyone made a number of comparisons 
between societies in which the one method of apportioning 
happiness has been pursued, and societies in which the 
other has been pursued? Hardly so, considering that 
neither the one method nor the other has been pursued in 
any society. This alternative assumption has no more facts 
to stand upon than the assumption repudiated. If it does 
not claim for itself an a priori warrant, then it has no 
warrant. 

See then the predicament. While reprobating assump- 
tions said to be warranted only by direct intuition, this 
empirical system makes more such assumptions than the 
system to which it is opposed ! One of them is implied in 
the assertion that happiness should be the end sought, and 
another of them is implied in either of the two assertions 
that men have equal rights to happiness or that they have 



60 JUSTICE. 

not equal rights to happiness. Mark, too, that no one of 
these intuitions is justified by so wide a consensus as the 
intuition rejected as untrustworthy. Sir Henry Maine 
remarks that — 

" The happiness of mankind is, no doubt, sometimes assigned, both in the 
popular and in the legal literature of the Eomans, as the proper object of 
remedial legislation, but it is very remarkable how few and faint are the 
testimonies to this principle compared with the tributes which are constantly 
offered to the overshadowing claims of the Law of Nature." (Ancient Law, 
p. 79, 3rd edit.) 

And it is scarcely needful to say that since Roman times, 
there has continued to be this contrast between the narrow 
recognition of happiness as an end, and the wide recog- 
nition of natural equity as an end. 

§ 35. But now let it be remembered that this principle 
of natural equity, expressed in the last chapter as the 
freedom of each limited only by the like freedom of all, 
is not an exclusively a priori belief. Though, under one 
aspect, it is an immediate dictum of the human con- 
sciousness after it has been subject to the discipline of 
prolonged social life, it is, under another aspect, a belief 
deducible from the conditions to be fulfilled, firstly for the 
maintenance of life at large, and secondly for the main- 
tenance of social life. 

Examination of the facts has shown it to be a funda- 
mental law, by conformity to which life has evolved 
from its lowest up to its highest forms, that each adult 
individual shall take the consequences of its own nature 
and actions : survival of the fittest being the result. And 
the necessary implication is an assertion of that full 
liberty to act which forms the positive element in the 
formula of justice; since, without full liberty to act, the 
relation between conduct and consequence cannot be main- 
tained. Various examples have made clear the conclusion, 
manifest in theory, that among gregarious creatures this 
freedom .of each to act, has to be restricted; since if it is 



THE AUTHORITY OF THIS FORMULA. 61 

unrestricted there must arise such clashing of actions as 
prevents the gregariousness. And the fact that, relatively 
unintelligent though they are, inferior gregarious creatures 
inflict penalties for breaches of the needful restrictions, 
shows how regard for them has come to be unconsciously 
established as a condition to persistent social life. 

These two laws, holding, the one of all creatures and the 
other of social creatures, and the display of which is clearer 
in proportion as the evolution is higher, find their last and 
fullest sphere of manifestation in human societies. We 
have recently seen that along with the growth of peaceful 
co-operation there has been an increasing conformity to this 
compound law under both its positive and negative aspects ; 
and we have also seen that there has gone on simultaneously 
an increase of emotional regard for it and intellectual 
apprehension of it. 

So that we have not only the reasons above given for 
concluding that this a priori belief has its origin in the 
experiences of the race, but we are enabled to affiliate it 
on the experiences of living creatures at large, and to 
perceive that it is but a conscious response to certain 
necessary relations in the order of nature. 

No higher Warrant can be imagined ; and now, accepting 
the law of equal freedom as an ultimate ethical principle, 
having an authority transcending every other, we may 
proceed with our inquiry. 



CHAPTER VIII. 

ITS COEOLLAEIES. 

§ 36. Men's activities are many in their kinds and the 
consequent social relations are complex. Hence, that the 
general formula of justice may serve for guidance, deduc- 
tions must be drawn severally applicable to special classes 
of cases. The statement that the liberty of each is bounded 
only by the like liberties of all, remains a dead letter until 
it is shown what are the restraints which arise under the 
various sets of circumstances he is exposed to. 

Whoever admits that each man must have a certain 
restricted freedom, asserts that it is right he should have this 
restricted freedom. If it be shown to follow, now in this 
case and now in that, that he is free to act up to a certain 
limit but not beyond it, then the implied admission is that 
it is right he should have the particular freedom so denned. 
And hence the several particular freedoms deducible may 
fitly be called, as they commonly are called, his rights, 

§ 37. Words are sometimes profoundly discredited 
by misuse. The true ideas they connote become so inti- 
mately associated with false ideas, that they in large 
measure lose their characters. This is conspicuously the 
case with the word " rights." 

In past times rivers of blood were shed in maintaining 
the " right" of this or that person to a throne. In the 



ITS COROLLAEIES. 63 

days of the old Poor Law the claims of the pauper were 
habitually urged on the ground that he had a "right " 
to a maintenance out of the soil. Not many years since 
we were made familiar with the idea, then current among 
French working-men, that they had a " right " to labour; 
that is, a right to have labour provided for them. At the 
present time communists use the word " rights " in ways 
which entirely invert the meaning given to it by past 
usages. And so lax is the application of the word that 
those who pander to the public appetite for gossip about 
notable personages, defend themselves by saying that " the 
public has a ' right* to know." 

The consequeuce has been that, in many of the culti- 
vated, there has been produced a confirmed, and indeed con- 
temptuous, denial of rights. There are no such things, 
say they, except such as are conferred by law. Following 
Bentham, they affirm that the State is the originator of 
rights, and that apart from it there are no rights. 

But if lack of discrimination is shown in such misuse 
of words as includes under them more than should be 
included, lack of discrimination is also shown in not per- 
ceiving those true meanings which are disguised by the 
false meanings. 

§ 38. As is implied above, rights, truly so called, are 
corollaries from the law of equal freedom, and what are 
falsely called rights are not deducible from it. 

In treating of these corollaries, as we now proceed to 
do, we shall find that, in the first place, they one and all 
coincide with ordinary ethical conceptions, and that, in 
the second place, they one and all correspond with legal 
enactments. Further, it will become apparent that so 
far is it from being true that the warrant for what are 
properly called rights is derived from law, it is, conversely, 
true that law derives its warrant from them. 



CHAPTER IX. 

THE EIGHT TO PHYSICAL INTEGEITY. 

§ 39. For using a title that is so apparently pedantic, 
my defence must be that no other adequately expresses 
everything to be included in the chapter. The physical 
integrity which has to be claimed for each, may at the 
one extreme be destroyed by violence, and at the other 
extreme interfered with by the nausea which a neigh- 
bouring nuisance causes. 

It is a self-evident corollary from the law of equal 
freedom that, leaving other restraints out of consideration, 
each man's actions must be so restrained as not directly to 
inflict bodily injury, great or small, on any other. In 
the first place, actions carried beyond this limit imply 
the exercise on one side of greater freedom than is exer- 
cised on the other, unless it be by retaliation ; and we 
have seen that, as rightly understood, the law does not 
countenance aggression and counter-aggression. In the 
second place, considered as the statement of a condition 
loy conforming to which the greatest sum of happiness is 
to be obtained, the law forbids any act which inflicts 
physical pain or derangement. 

§ 40. Only for form's sake is it needful to specify 
under this general head, the right to life and the conse- 
quent interdict on murder. This, which in civilized 



THE RIGHT TO PHYSICAL INTEGRITY. 65 

communities is regarded as the blackest of crimes, may 
be considered as unconsciously, if not consciously, thus re- 
garded because it is the greatest possible breach of the 
law of equal freedom ; for by murder another's power to 
act is not merely interfered with but destroyed. While, 
however, it is not needful to insist on this first deduction 
from the law of equal freedom, that life is sacred, it will 
be instructive to observe the successive steps towards 
recognition of its sacredness. 

Noting as an extreme case that of the Fijians, among 
whom murder is, or was, thought honourable, we may 
pass to the many cases furnished by savage tribes who 
kill their old, diseased, and useless members. Various of 
the early European peoples, too, did the like. Grimm tells 
us that among the Wends " the children killed their aged 
parents, blood and other relatives, also those who no longer 
were fit for war or work, and then cooked and ate them, or 
buried them alive." "The Herulians, also, killed their 
aged and sick. . . Later traces of the custom of killing 
the aged and sick are found in North Germany." 

Apart from this deliberate destruction of incapable t 
members of the tribe, which very generally had the 
excuse that it was needful for preservation of the capable, 
there has habitually existed, in primitive social groups, no 
public recognition of murder as a crime. Of the Homeric 
Greeks Grote writes that the murderer had to dread only 
"the personal vengeance of the kinsmen and friends." 
These might compound for the offence by a stipulated 
payment. All that the chiefs did in such cases was to see 
that the bargains were fulfilled. In later times through- 
out Europe, the same ideas, sentiments, and practices 
prevailed. It was not so much the loss of his life by 
the man slain which constituted the evil, as the injury 
done to his family or clan : this was the wrong which 
had to be avenged or compounded for. Hence it was 
a matter of comparative indifference whether the actual 
4 



66 JUSTICE. 

murderer was killed in return, or whether some guilt- 
less member of the murderer's kindred. And this, too, 
was probably a part cause for the gradation in the 
compensations to be made for murders according to the 
rank of the murdered — compensations which, after being 
in earlier stages matters of private agreement, came 
presently to be established by law. And to how small 
an extent the conception of the sacredness of life had 
grown up, is seen in the fact that the slave had no 
wergeld or hot : his lord could slay him if he pleased, and 
if slain by some one else his value as a chattel only could 
be demanded. 

An unobtrusive step towards recognition of murder as 
something more than a private offence, took place when 
part of the money paid in compensation went to the king : 
the idea being, in considerable measure, still the same ; 
since destruction of a subject was destruction of a 
portion of the king's power over subjects, and did, 
in effect, diminish the strength of his society for fighting 
purposes. But the continuance of the different fines 
adjusted to different ranks, shows how little the intrinsic 
criminality of murder was recognized ; and this is further 
shown by the distinction which benefit of clergy made. 
Up to the time of the Plantagenets a murderer " who knew 
how to read escaped from nearly all punishment." 

Merely noting that a great step was made under 
the Commonwealth, when " benefit of clergy was to be 
abolished absolutely; " when, u by a separate Act, wager 
of battle was abolished ; w and when " the same Act 
punished duelling with extraordinary severity " (legisla- 
tion which recognized the intrinsic guilt of murder) we 
may come at once to modern times. No class-distinction 
can now be pleaded in mitigation, and no condonation 
under any form is possible. 

The course of this progress presents three significant 
facts. Maintenance of life is in the earliest stages an 



THE EIGHT TO PHYSICAL INTEGRITY. 67 

entirely private affair, as among brutes; and to the taking 
of it there is attached scarcely more idea of wrong than 
among brutes. With growing social aggregation and 
organization, the taking of life comes to be more and 
more regarded as a wrong done, first to the family or the 
clan, and then to the society; and it is punished rather as 
a sin against society than as a sin against the individual. 
But eventually, while jbhere is retained the conception of 
its criminality as a breach of the law needful for social 
order, there becomes predominant the conception of its 
criminality as an immeasurable and irremediable wrong- 
done to the murdered man. This consciousness of the 
intrinsic guilt of the act, implies a consciousness of the 
intrinsic claim of the individual to life : the right to life 
has acquired the leading place in thought. 

§ 41. The connexion between such degree of bodily 
injury as causes death, and such degree of bodily injury 
as causes more or less incapacity for carrying on life, has 
all along been too obvious to escape recognition. Hence, 
with that tacit assertion of the right to physical integrity 
which is implied by the punishment of murder, there has 
gone such further tacit assertion of it as is implied by 
punishments for inflicting mutilations, wounds, &c. Natur- 
ally, too, there has been a certain parallelism between 
the successive stages in the two cases ; beginning with 
that between life for life and " an eye for an eye/' 

When, after the early stage in which retaliation was 
entirely a private affair, there was reached the stage in 
which it came to be an affair concerning the family or 
clan, we see that as the clan avenged itself by taking from 
an offending clan a life to balance the life it had lost, so 
by insisting on a substituted, if not an actual, equivalent, 
it sought to avenge an injury which was not fatal. This is 
shown by the fact that after the system of money-damages 
had grown up, the price, not only for a life but for a limb, 



68 JUSTICE. 

was to be paid by the family or house of the wrong-doer 
to the family or house of the wronged. A further fact 
implies this same conception. With, the Germanic tribes 
and the early English, along with compensations for 
homicide, varying according to rank, there went "as 
large a scheme of compensations for minor injuries/' 
also according to rank. The implication in both cases is 
that the damage to the family or clan was dominant in 
thought, rather than the damage to the individual. The 
like held in ancient Russia. 

As fast as the social life of smaller groups or clans, 
merged into the social life of larger groups or nations, the 
idea of injury to the nation began to replace that of injury 
to the clan ; and at first part, and eventually the whole, of 
the fine or amercement payable by one who had committed 
an assault, went to the State ; and this usage still survives. 
Though in cases of personal violence the current conscious- 
ness is now mainly occupied by sympathy with the injured 
man, and reprobation of the offender for having inflicted 
pain and accompanying mischief, yet the State appro- 
priates the condonation-money, and leaves the sufferer to 
bear the evil as best he may. 

But in modern days we see growth of a higher conception, 
in the awarding of compensations for injuries which have 
resulted from negligence. The claim of the citizen agamsfc 
a fellow-citizen, not only for bodily damage voluntarily 
inflicted on him but for bodily damage caused by careless 
actions or inactions, dates back some centuries at least. 
Much more extensive applications of the principle have 
of late years been made; such as those which, render a 
railway-company liable for injuries caused by imperfection 
of its appliances or inattention of its officials, and private 
employers for those entailed on workmen by defective 
apparatus, by lack of safeguards, or by operations involving 
risk. These developments of law imply higher apprecia- 
tions of the claims of the individual to physical integrity; 



THE RIGHT TO PHYSICAL INTEGRITY. 69 

and the fact that the person or company responsible for 
the mischief done, is called upon to pay damages to the 
sufferer and not to the State, is one of the proofs that 
the claim of the individual to physical integrity, now 
occupies in the general consciousness a greater space 
than the thought of social detriment done by disregard 
of such claim. 

Nor must we omit to note, in proof of the same thing, 
that what we may call the sacredness of the person, 
has in our days been further insisted on by laws which 
regard as assaults, not only such acts of violence as cause 
slight injuries, but such as are constituted by intentional 
pushes or other forcible interferences with another's body, 
or even by threatening uses of the hands without actual 
contact ; and laws which also make a kiss, taken without 
consent, a punishable offence. 

§ 42. One more trespass against physical integrity, 
not in early times thought of as such, but held to be such 
in our times, is that which consists in the communication of 
disease. 

This is a kind of trespass which, though grave, and though 
partly recognized in law, occupies neither in law nor in the 
general conscience so distinct a place as it should do : 
probably because of the indefiniteness and uncertainty of 
the mischievous results. Here is a father who fetches 
home his boy suffering from an epidemic disease, regardless 
of the fact that the railway-carriage in which they travel 
may not improbably infect others; and here is a mother 
who asks the doctor whether her children have sufficiently 
recovered from scarlet fever to go to school, and proposes 
to send them notwithstanding the intimation that they 
may very possibly convey the disease to their school- 
fellows. Such acts are, indeed, punishable ; but they so 
commonly pass without detection, and the evils likely to be 
inflicted are so faintly conceived, that they are scarcely 



70 JUSTICE. 

thought of as offences; though they really ought to be 
regarded as something like crimes — if not actual crimes, 
then potential crimes. 

For let us remember that there is now recognized by law 
and, by public conscience, the truth that not only actual 
physical mischiefs to others but also potential physical mis- 
chiefs to others, are flagitious. We have reached a stage in 
which the body of each person is so far regarded as a terri- 
tory inviolable by any other person, that we rank as offences 
all acts which are likely to bring about violation of it. 

§ 43. Thus it is undeniable that what we see to be the 
primary corollary from the formula of justice, has been, in 
the course of social evolution and the accompanying evolu- 
tion of Man's mental nature, gradually establishing itself. 
Prolonged converse with the conditions under which alone 
social life can be harmoniously carried on, has slowly 
moulded sentiments, ideas, and laws, into conformity with 
this primary ethical truth deducible from those conditions. - * 

That which it here concerns us specially to note, is that 
murder, manslaughter, mutilation, assault, and all tres- 
passes against physical integrity down to the most trivial, 
have not become transgressions in virtue of laws forbidding 
them, nor in virtue of interdicts having a supposed super- 
natural origin; but they have become transgressions as 
being breaches of certain naturally-originated restraints. 

It remains only to say that while, in a system of absolute 

* A barrister who has devoted much attention to the evolution of law, 
has obliged me by checking the statements which preceding and succeeding 
chapters contain respecting laws, past and present. To the above paragraph 
he has appended the following note :- 

" The late Clitheroe abduction case which establishes that a man may 
not forcibly detain his own wife, is an interesting example of this doctrine. 
In this case the right of married women to physical liberty has only just been 
established by a Court of Appeal ; and that against the opinion of two very 
able judges of 1st instance, who thought that the old law was otherwise. 

The punishment by justices of School-board teachers, for the use of the 
rod on the boys, is another example of this growing feeling, which moulds 
the law while assuming only to administer it." 



THE EIGHT TO PHYSICAL INTEGRITY. 71 

ethics, the corollary here drawn from the formula of justice 
is unqualified, in a system of relative ethics it has to be 
qualified by the necessities of social self-preservation. 
Already we have seen that the primary law that each 
individual shall receive and suffer the benefits and evils of 
his own nature, following from conduct carried on with due 
regard to socially-imposed limits, must, where the group 
is endangered by external enemies, be modified by the 
secondary law, which requires that there shall be such 
sacrifice of individuals as is required to preserve, for the 
aggregate of individuals, the ability thus to act and to 
receive the results of actions. Hence, for purposes of 
defensive war, there is justified such contingent loss of 
physical integrity as effectual defence of the society 
requires : supposing, always, that effectual defence is 
possible. For it would seem to be an implication that 
where the invading force is overwhelming, such sacrifice of 
individuals is not justified. 

"We see here, indeed, as we shall see throughout all 
subsequent chapters, that the requirements of absolute 
ethics can be wholly conformed to only in a state of 
permanent peace ; and that so long as the world continues 
to be occupied by peoples given to political burglary, the 
requirements of relative ethics only, can be fulfilled. 



CHAPTER X. 

THE EIGHTS TO FKEE MOTION AND LOCOMOTION. 

§ 44. As direct deductions from the formula of justice, 
the right of each man to the use of unshackled limbs, and 
the right to move from place to place without hindrance, 
are almost too obvious to need specifying. Indeed these 
rights, more perhaps than any others, are immediately 
recognized in thought as corollaries. Clearly, one who binds 
another's limbs, chains him to a post, or confines him in a 
dungeon, has used greater liberty of action than his 
captive; and no less clear is it that if, by threatened 
punishment or otherwise, he debars him from changing 
his locality, he commits a kindred breach of the law of 
equal freedom. 

Further, it is manifest that if, in either of these ways, a 
man's liberty of action is destroyed or diminished, not by 
some one other man but by a number of other men acting 
jointly — if each member of a lower class thus has his 
powers of motion and locomotion partially cut off by the 
regulations which a higher class has established, each 
member of that higher class has transgressed the ultimate 
principle of equity in like manner if in a smaller degree. 

§ 45. We have already seen that the instinct prompt- 
ing flight, as well as the desire to escape when captured, 
show us in sub-human beings, as well as in human beings, 



THE RIGHTS TO FREE MOTION AND LOCOMOTION. 73 

the presence of that impulse which finally emerges as a 
conscious claim to free motion and locomotion. But while 
this positive element in the sentiment corresponding to the 
right, deep-rooted as it is, early manifests itself, the 
negative element in it, corresponding to the imposed limits, 
has to await the discipline of sociality before it can reach 
any considerable development. 

We have instances showing that where governmental 
control does not exist, or is very feeble, the tacit 
claim to unhindered movement is strongly pronounced ; 
whether the nature be of a savage kind or of a gentle kind. 
Of the one class may be named the Abors, who are so self' 
asserting that they cannot live together, and the Nagas to 
whom the notion of restraint is so foreign that they ridicule 
the idea of a ruler. Of the other class I may instance 
the before-named Lepchas, who, mild as they are, fly to 
the woods and live on roots rather than submit to coercion ; 
and the Jakuns, who are greatly valued as servants 
because of their virtues, but who disappear at once if 
authority is injudiciously exercised over them. Having in 
common a strong sense of personal liberty, these types of 
men differ in the respect that while, in the warlike type, 
this sense is egoistic only, it is, in the peaceful type, 
altruistic also — is joined with respect for the personal 
liberties of others. 

Out of primitive unorganized groups, or groups of which 
the organization is very slight, the progress to large and 
organized groups is effected by war. While this implies 
little regard for life, it also implies little regard for liberty ; 
and hence, in the course of the process by which nations 
are formed, recognition of the claim to liberty, as well as of 
that to life, is subordinated : the sentiment is continually 
repressed and the idea is rendered vague. Only after 
social consolidation has made great progress, and social 
organization has become in large measure industrial — only 
when militancy has ceased to be constant and the militant 



74 JUSTICE. 

type of structure has relaxed, do the sentiment and the idea 
become more marked. 

Here we have to glance at some of the steps through 
which the claim to freedom of motion and locomotion is 
gradually established, ethically and legally. 

§ 46. It has been remarked with truth that the rise of 
slavery was practically a limitation of cannibalism, and in 
so far a progress. When the prisoner of war was allowed 
to live and work instead of being cooked and eaten, the 
fundamental principle of equity was no longer absolutely 
negatived in his person; for the continuance of his life, 
even under the imposed conditions, made possible some 
maintenance of the relation between conduct and con- 
sequence. Where the enslaved prisoners and their 
descendants, fed and sheltered to the extent required for 
making use of them as working cattle, are also liable at any 
time to be made into food, as until lately among the Fijians, 
this mitigation of cannibalism is relatively small; but where, 
as among many of the uncivilized, the slave is treated in 
large measure as a member of the family, the restraints on 
his freedom are practically not much greater than those to 
which the children are subject. 

To specify the different forms and qualifications of 
bondage which have existed among various peoples at 
different times and under changing social conditions, would 
be needless for our purpose here, even were it practicable. 
Such facts only must be named as indicate how the concep- 
tion of individual liberty grew up, alike in law and in ethics. 
We may note that among the Hebrews, while persons of 
foreign blood might be bought and, with their children, 
inherited as possessions, those of Hebrew blood who sold 
themselves, either to men of their own race or to strangers 
sojourning among them, were subject to a slavery qualified 
alike in respect of length and rigour : the reason given 
being that, as servants of God, they could not be permanently 



THE EIGHTS TO FREE MOTION AND LOCOMOTION. 75 

alienated. But there was neither recognition of any wrong 
inflicted by enslavement, nor of any correlative right to 
freedom. This lack of the sentiments and ideas which, in 
modern times, have become so pronounced, continued to the 
time when Christianity arose, and was not changed by 
Christianity. Neither Christ nor his apostles denounced 
slavery; and when, in reference to freedom, there was 
given the advice to " use it rather " than slavery, there was 
manifestly implied no thought of any inherent claim of each 
individual to unhindered exercise of free motion and loco- 
motion. So was it among the Greeks ; as, indeed, it has 
been among most peoples during early stages. In Homeric 
times, captives taken in war were enslaved and might be 
sold or ransomed; and throughout Greek civilization, 
accompanying warfare that was practically chronic, slavery 
was assumed to be a normal part of the social order. Lapse 
into bondage by capture, debt, or otherwise, was regarded 
as a misfortune; and no reprobation attached to the slave- 
owner. That is to say, the conception of freedom as an 
inalienable right of each man, had little or no place in 
either ethics or law. Inevitably, indeed, it was suppressed 
in relation to slaves, literally so-called, when even those 
who were nominally free were in reality slaves of the State 
— when each citizen belonged not to himself but to his city. 
And it is noteworthy that in the most warlike Greek state, 
Sparta, not only was the condition of the helot more abject 
than elsewhere, but the Spartan master himself was 
deprived in a greater degree than elsewhere of the power 
to order his own movements as he pleased. 

Indeed we may recognize, generally, the fact that in 
states which have grown considerably in size and structure, 
it has naturally happened that since they have thus grown 
by external aggression and conquest, implying, as it always 
does, internal coercion, individuality has been so greatly 
repressed as to leave little trace in law and usage. 

§ 47. To illustrate the growth in morals and legisla- 



76 JUSTICE. 

tion of that conception of human freedom which has now 
become established among the leading civilized races, it will 
suffice if we glance at some of the chief steps traceable in 
our own history. 

Militant as were the successive swarms of invaders who, 
now subjugating and now expelling the previous possessors 
of the soil, peopled the country in old English days, it of 
course happened that slaves existed among them — a class of 
the unfree, originally captives, the size of which was from 
time to time augmented by the addition of debtors and 
criminals. Along with the growth of population and 
accompanying advance of political organization, those who, 
under the original Mark-system, had formed a class of free 
men, gradually lost much of their liberty : occasionally 
by conflicts within groups, in the course of which some 
members gained predominance, but mostly in the course of 
external conflicts, leading to subjugations and establish- 
ments of lordships. Peasants became subject to thegns and 
thegns to higher nobles; so that "by Alfred's day it was 
assumed that no man could exist without a lord : " implying 
deprivation of freedom not only in members of the lowest 
rank (the slaves who were bought and sold) but in members 
of all higher ranks. Amid the changes which followed the 
Conquest, this limitation of liberty implied by sworn fealty 
continued ; or rather, indeed, was increased, save in the 
partial abolition of trade in slaves. With the growth, of 
towns during the 11th century, the accompanying develop- 
ment of industrial institutions, the implied replacing of 
relations of status by relations of contract, and the develop- 
ment of a " new moral sense of man's right to equal justice," 
came a tl transition from pure serfage to an imperfect 
f reedom." A century later the Great Charter put restraints 
on arbitrary rule, and the consequent losses of freedom by 
citizens. The growing influence of the trading classes 
was shown by the concession of liberty of journeying to 
foreign merchants. And then when, after another hundred 
years, the attachment of the serf to the soil, gradually 



THE RIGHTS TO FREE MOTION AND LOCOMOTION. 77 

weakened, had been broken, the fully free labourer acquired 
the right of unhindered locomotion. Though he partially- 
lost this right when the Black Death caused so large a 
decrease of population, and consequent great rise in wages, 
that there was prompted a statute fixing the price of labour, 
and tying the labourer to his parish ; yet these restraints, 
by the violent resistance they caused, led to a violent 
assertion of equality, not only in respect to right of 
locomotion but- in respect to other things. But how little 
the claim to freedom was then recognized by the ruling 
classes, was shown when, after the subjugation of the 
revolting peasants, the king suggested enfranchisement; 
and when the landowners, asserting that their serfs were 
their goods, said that consent to emancipation " we have 
never given and never will give, were we all to die in one 
day." As increase of industrial activity and organization 
had produced increase of liberty, so, conversely, the twenty 
years of militant activity known as the Wars of the Roses, 
destroyed much of the liberty which had been obtained : 
not, however, the detachment of the peasant from the soil, 
and consequent ability to wander about, which., in the 
disturbed social state left by the collapse of feudalism, 
entailed an industrial disorganization that was remedied by 
again putting the labouring class under partial coercion, 
and partially attaching them to their localities, without 
otherwise restraining their movements. The freedom thus 
obtained had, however, still to be safeguarded; and the 
provisions against arbitrary imprisonment, dating from 
the Great Charter but often broken through, were 
strengthened, towards the end of the 17th century, by the 
Habeas Corpus Act. Save slight interferences caused by 
temporary panics, personal liberty in England thereafter 
continued intact; while such minor restraints on freedom of 
movement as were involved in the laws forbidding artizans 
to travel in search of work, were formally abolished in 1824. 
And now let us not omit to note that, along with the 



78 JUSTICE. 

slow legal establishment of personal liberty there has 
gone a growth of the responsive sentiment ; and that with 
the egoistic assertion of liberty has been eventually joined 
the altruistic assertion of it. Those changes which, in the 
course of many centuries, have advanced social arrangements 
from a condition of complete slavery of the lowest, and 
qualified slavery of those above them, to a state of absolute 
freedom for all, have, towards their close, produced both 
sentiment and law asserting this freedom, not in English 
citizens only but in aliens under English rule — beginning 
with the emancipation of slaves who set foot on English soil, 
and ending with the emancipation of all who inhabited 
English colonies : since which time abolition of slavery else- 
where has been a constant aim. 

§ 48. Unless by those who think that civilization is 
a backward movement, it must, then, be admitted that 
induction justifies this deduction from the fundamental 
principle of equity. Those who think that ancient societies 
were of higher types than our own, and human welfare 
better achieved by them — those who think that feudal 
organization with its grades of vassalage superposed on 
villeinage, produced a greater total of happiness than we ex- 
perience now — those who, with Mr. Carlyle, yearn for a time 
like that of Abbot Sampson, and applaud the obedience of 
the Russians to their Czar; may consistently deny that 
growth of the sentiment of liberty, and establishment of 
individual freedom by law, affoid any support for the 
abstract inference drawn in this chapter. But those who 
think that our days are better than those in which nobles 
lived in castles and wore shirts of mail — those who think 
that oubliettes and torture-chambers were accompaniments 
of a social state less desirable than that in which princes as 
well as paupers are subject to the administration of justice — 
those who think that the regime which brought about 
peasant revolts was inferior to that which is characterized 



THE RIGHTS TO FKEE MOTION AND LOCOMOTION. 79 

by multitudinous societies for furthering popular welfare, 
must admit that the generalization drawn from human ex- 
periences at large, is at one with the corollary above drawn 
from the formula of justice. 

But this dictum of absolute ethics has to be qualified by 
the requirements of relative ethics. From the principle 
laid down at the outset, that the preservation of the species, 
or that variety of it constituting a society, is an end which 
must take precedence of the preservation of the individual, 
it follows that the right to individual liberty, like the right 
to individual life, must be asserted subject to qualifications 
entailed by the measures needful for national safety. Such 
trespass on liberty as is required to preserve liberty, has a 
quasi-ethical warrant. Subject only to the condition that 
all capable members of the community shall be equally 
liable to it, that restraint on the rights of free motion and 
locomotion necessitated by military organization and dis- 
cipline, is legitimate ; provided always that the end in 
view is defensive war and not offensive war. 



CHAPTER XI. 

THE EIGHTS TO THE USES OF NATUEAL MEDIA. 

§ 49. A man may be entirely uninjured in body by 
the actions of fellow-men, and lie may be entirely unim- 
peded in bis movements by them, and he may yet be 
prevented- from carrying on the activities needful for 
maintenance of life, by traversing his relations to the 
physical environment on which his life depends. It is, 
indeed, alleged that certain of these natural agencies 
cannot be removed from the state of common possession. 
Thus we read : — 

" Some things are by nature itself incapable of appropriation, so that they 
cannot be brought under the power of anyone. These got the name of res 
communes by the Eoman law; and were defined, things thf, property of 
which belongs to no person, but the use to all. Thus, the light, the air, 
running water, &c. are so adapted to the common use of mankind, that no 
individual can acquire a property in them, or deprive others of their use." 
(An Institute of the Law of Scotland by John Erskine, (ed. Macallan) i, 196.) 
But though light and air cannot be monopolized, the 
distribution of them may be interfered with by one man to 
the partial deprivation of another man — may be so interfered 
with as to inflict serious injury upon him. 

No interference of this kind is possible without a breach 
of the law of equal freedom. The habitual interception of 
light by one person in such way that another person is 
habitually deprived of an equal share, implies disregard of 
the principle that the liberty of each is limited by the like 



THE RIGHTS TO THE USES OP NATURAL MEDIA. 81 

liberties of all; and the like is true if free access to air 
is prevented. 

Under the same general head there must, however, by 
an unusual extension of meaning, be here included some- 
thing which admits of appropriation — the surface of the 
Earth. This, as forming part of the physical environment, 
seems necessarily to be included among the media of which 
the use may be claimed under the law of equal freedom. 
The Earth's surface cannot be denied to any one absolutely, 
without rendering life-sustaining activities impracticable. 
In the absence of standing-ground he can do nothing ; and 
hence it appears to be a corollary from the law of equal 
freedom, interpreted with strictness, that the Earth's 
surface may not be appropriated absolutely by individuals, 
but may be occupied by them only in such manner as 
recognizes ultimate ownership by other men ; that is — by 
society at large. 

Concerning the ethical and legal recognitions of these 
claims to the uses of media, not very much has to be said : 
only the last demands much attention. We will look a.t 
each of them in succession. 

§ 50. In the earliest stages, while yet urban life had 
not commenced, no serious obstruction of one man's light 
by another man could well take place. In encampments of 
savages and in the villages of agricultural tribes, no one 
was led, in pursuit of his ends, to overshadow the habi- 
tation of his neighbour. Indeed, the structures and relative 
positions of habitations made such aggressions almost 
impracticable. 

In later times, when towns had grown up, it was unlikely 
that much respect would forthwith be paid by men to the 
claims of their neighbours in respect of light. During 
stages of social evolution in which the rights to life and 
liberty were little regarded, such comparatively trivial 
trespasses as were committed by those who built houses 



82 JUSTICE. 

close in front of others' houses, were not likely to attract 
much notice, considered either as moral transgressions or 
legal wrongs. The narrow, dark streets of ancient conti- 
nental cities, in common with the courts and alleys 
characterizing the older parts of our own towns, imply that 
in the days when they were built the shutting out by one 
man of another man's share of sun and sky, was not thought 
an offence. And, indeed, it may reasonably be held that 
recognition of such an offence was in those days impracti- 
cable; since, in walled towns, the crowding of houses 
became a necessity. 

In modern times, however, there has arisen the per- 
ception that the natural distribution of light may not be 
interfered with. Though the law which forbids the building 
of walls, houses, or other edifices of certain heights, within 
prescribed distances from existing houses, does not abso- 
lutely negative the intercepting of light ; yet it negatives 
the intercepting of it to serious degrees, and seeks to 
compromise the claims of adjacent owners as fairly as 
seems practicable. 

That is to say, this corollary from the law of equal 
freedom, if it has not come to be overtly asserted, has 
come to be tacitly recognized. 

§ 51. To some extent interference with the supply of 
light involves interference with the supply of air ; and, by 
interdicting the one, some interdict is, by implication, placed 
on the other. But the claim to use of the air, though ifc has 
been recognized by English law in the case of windmills, 
is less definitely established : probably because only small 
evils have been caused by obstructions. 

There has, however, risen into definite recognition the 
claim to unpolluted air. Though acts of one man which 
may diminish the supply of air to another man, have not 
come to be distinctly classed as wrong; yet acts which 
vitiate the quality of his air are in modern times regarded 
as offences — offences for which there are in some cases 



THE EIGHTS TO THE USES OP NATUEAL MEDIA. 83 

moral reprobations only, and in other cases legal penalties. 
In some measure all are severally obliged, by their own 
respiration, to vitiate the air respired by others, where they 
are in proximity. It needs but to walk a little distance 
behind one who is smoking, to perceive how widely diffused 
are the exhalations from each person's lungs ; and to what 
an extent, therefore, those who are adjacent, especially 
indoors, are compelled to breathe the air that has 
already been taken in and sent out time after time. But 
since this vitiation of air is mutual, it cannot constitute 
aggression. Aggression occurs only when vitiation by one, 
or some, has to be borne by others who do not take like 
shares in the vitiation ; as often happens in railway-carriages, 
where men who think themselves gentlemen smoke in 
other places than those provided for smokers : perhaps 
getting from fellow-passengers a nominal, though not a real, 
consent, and careless of the permanent nuisance entailed 
on those who afterwards travel in compartments reeking 
with stale tobacco-smoke. Beyond the recognition of this 
by right-th inking persons as morally improper, it is for- 
bidden as improper by railway-regulations ; and, in virtue 
of bye-laws, may bring punishment by fine. 

Passing from instances of this kind to instances of a 
graver kind, we have to note the interdicts against various 
nuisances — stenches resulting from certain businesses 
carried on near at hand, injurious fumes such as those from 
chemical works, and smoke proceeding from large chimneys. 
Legislation which forbids the acts causing such nuisances, 
implies the right of each citizen to unpolluted air. 

Under this same head we may conveniently include 
another kind of trespass to which the surrounding medium 
is instrumental. I refer to the production of sounds of a 
disturbing kind. There are small and large trespasses of 
this class. For one who, at a table d'hote, speaks so loudly 
as to interfere with the conversation of others, and for 
those who, during the performance at a theatre or concert, 



04 JUSTICE. 

persist in distracting the attention of auditors around by 
talking, there is reprobation, if nothing more : their acts 
are condemned as contrary to good manners, that is, good 
morals, for the one is a part of the other. And then when 
inflictions of this kind are public, or continuous, or both — as 
in the case of street-music and especially bad street-music, 
or as in the case of loud noises proceeding from factories, 
or as in the case of church-bells rung at early hours, the 
aggression has come to be legally recognized as such and 
forbidden under penalty : not as yet sufficiently recognized, 
however, as is shown in the case of railway-whistles at 
central stations, which are allowed superfluously to disturb 
tens of thousands of people all through the night, and often 
to do serious injury to invalids. 

Thus in respect of the uses of the atmosphere, the liberty 
of each limited only by the like liberties of all, though not 
overtly asserted, has come to be tacitly asserted ; in large 
measure ethically, and in a considerable degree legally. 

§ 52. The state of things brought about by civilization 
does not hinder ready acceptance of the corollaries thus 
far drawn; but rather clears the way for acceptance of 
them. Though in the days when cannibalism was common 
and victims were frequently sacrificed to the gods, assertion 
of the right to life might have been received with demur, 
yet the ideas and practices of those days have left no such 
results as stand in the way of unbiassed judgments. Though 
during times when slavery and serfdom were deeply orga- 
nized in the social fabric, an assertion of the right to liberty 
would have roused violent opposition, yet at the present 
time, among ourselves at least, there exists no idea, senti- 
ment, or usage, at variance with the conclusion that each 
man is free to use his limbs and move about where he 
pleases. And similarly with respect to the environment. 
Such small interferences with others' supplies of light and 
air as have been bequeathed in the structures of old towns 



THE EIGHTS TO THE USES OP NATUEAL MEDIA. 85 

and sucli others as smoking fires entail, do not appreciably 
hinder acceptance of the proposition that men have equal 
claims to uses of the media in which all are immersed. 
But the proposition that men have equal claims to the use 
of that remaining portion of the environment — hardly to 
be called a medium — on which all stand and by the products 
of which all live, is antagonized by ideas and arrangements 
descending to us from the past. These ideas and arrange- 
ments arose when considerations of equity did not affect 
land-tenure any more than they affected the tenure of men 
as slaves or serfs ; and they now make acceptance of the 
proposition difficult. If, while possessing those ethical 
sentiments which social discipline has now produced, men 
stood in possession of a territory not yet individually por- 
tioned out, they would no more hesitate to assert equality 
of their claims to the land than they would hesitate to 
assert equality of their claims to light and air. But now 
that long-standing appropriation, continued culture, as well 
as sales and purchases, have complicated matters, the 
dictum of absolute ethics, incongruous with the state of 
things produced, is apt to be denied altogether. Before 
asking how, under these circumstances, we must decide, let 
us glance at some past phases of land-tenure. 

Partly because in early stages of agriculture, land, 
soon exhausted, soon ceases to be worth occupying, it has 
been the custom with little-civilized and semi-civilized 
peoples, for individuals to abandon after a time the tracts 
they have cleared, and to clear others. Causes aside, 
however, the fact is that in early stages private ownership 
of land is unknown : only the usufruct belongs to the 
cultivator, while the land itself is tacitly regarded as the 
property of the tribe. It is thus now with the Sumatrans 
and others, and it was thus with our own ancestors : the 
members of the Mark, while they severally owned the pro- 
ducts of the areas they respectively cultivated, did not own 
the areas themselves. Though it may be said that at first 



86 JUSTICE. 

they were members of the same family, gens, or clan, and 
that the ownership of each tract was private ownership in so 
far as the tract belonged to a cluster of relations ; yet since 
the same kind of tenure continued after the population of 
the Mark had come to include men who were unrelated to 
the rest, ownership of the tract by the community and not 
by individuals became an established arrangement. This 
primitive condition will be clearly understood after con- 
templating the case of the Russians, among whom it has 
but partially passed away. 

" The village lands were held in common by all the members of the 
association [mir] ; the individual only possessed his harvest, and the dvor 
or enclosure immediately surrounding his house. This primitive condition 
of property, existing in Russia up to the present day, was once common to 
all European peoples." — (The History of Russia, A. Eambaud, trans, by 
Lang, vol. i. p. 45). 

With this let me join a number of extracts from Wallace's 
Russia, telling us of the original state of things and of the 
subsequent states. After noting the fact that while the Don 
Cossacks were purely nomadic — " agriculture was prohibited 
on pain of death," apparently because it interfered with 
hunting and cattle-breeding, he says — 

" Each Cossack who wished to raise a crop ploughed and sowed wherever 
he thought fit, and retained as long as he chose the land thus appropriated ; 
and when the soil began to show signs of exhaustion, he abandoned his plot 
and ploughed elsewhere. As the number of agriculturists increased, quarrels 
frequently arose. Still worse evils appeared when markets were created in 
the vicinity. In some stamtzas [Cossack villages] the richer families 
appropriated enormous quantities of the common land by using several teams 
of oxen, or by hiring peasants in the nearest villages to come and plough for 
them ; and instead of abandoning the land after raising two or three crops 
they retained possession of it. Thus the whole of the arable land, or at 
least the best parts of it, became actually, if not legally, the private property 
of a few families." — (lb. ii. 86.) 

Then he explains that as a consequence of something like a 
revolution — 

"In accordance with their [the landless members of the community's] 
demands the appropriated land was confiscated by the Commune and the 
system of periodical distributions . . . was introduced. By this system each 
adult male possesses a share of the land." — (lb. ii. 87.) 

On the Steppes " a plot of land is commonly cultivated for only three or 



THE EIGHTS TO THE USES OP NATUEAL MEDIA. 87 

four years in succession. It is then abandoned for at least double that 
period, and the cultivators remove to some other portion of the communal 
territory . . . Under such circumstances the principle of private property in 
the land is not likely to strike root ; each family insists on possessing 
a certain quantitij rather than a certain plot of land, and contents itself with 
a right of usufruct, whilst the right of property remains in the hands of the 
Commune."— (lb. ii. 91.) 

But in the central and more advanced districts this early- 
practice has become modified, though without destroying 
the essential character of the tenure. 

"According to this system [the three-field system] the cultivators do not 
migrate periodically from one part of the communal territory to another, 
but till always the same fields, and are obliged to manure the plots which 
they occupy. . . . Though the three-field system has been in use for many 
generations in the central provinces, the communal principle, with its 
periodical re-allotment of the land, still remains intact." — (lb. ii. 92.) 

Such facts, and numerous other such facts, put beyond 
question the conclusion that before the progress of social 
organization changed the relations of individuals to the 
soil, that relation was one of joint ownership and not one of 
individual ownership. 

How was this relation changed ? How only could it be 
changed ? Certainly not by unforced consent. It cannot 
be supposed that all, or some, of the members of the 
community willingly surrendered their respective claims. 
Crime now and again caused loss of an individual's share 
in the joint ownership ; but this must have left the 
relations of the rest to the soil unchanged. A kindred result 
might have been entailed by debt, were it not that debt 
implies a creditor ; and while it is scarcely supposable that 
the creditor could be the community as a whole, indebtedness 
to any individual of it would not empower the debtor to trans- 
fer in payment something of which he was not individually 
possessed, and which could not be individually received. 
Probably elsewhere there came into play the cause described 
as having operated in Eussia, where some, cultivating 
larger areas than others, accumulated wealth and con- 
sequent power, and extra possessions ; but, as is implied 
by the fact that in Russia this led to a revolution and 



88 JUSTICE. 

re-institution of the original state, the process was evidently 
there, and probably elsewhere, regarded as aggressive. 
Obviously the chief cause must have been the exercise of 
direct or indirect force : sometimes internal but chiefly 
external. Disputes and fights within the community, 
leading to predominance (achieved in some cases by 
possession of fortified houses) prepared the way for partial 
usurpations. When, as among the Suanetians, we have a 
still-extant case in which every family in a village has its 
tower of defence, we may well understand how the intestine 
feuds in early communities commonly brought about 
individual supremacies, and how these ended in the 
establishment of special claims upon the land subordinating 
the general claims. 

But conquest from without has everywhere been chiefly 
instrumental in superseding communal proprietorship by 
individual proprietorship. It is not to be supposed that in 
times when captive men were made slaves and women 
appropriated as spoils of war, much respect was paid to 
pre-existing ownership of the soil. The old English 
buccaneers who, in their descents on the coast, slew priests 
at the altars, set fire to churches, and massacred the people 
who had taken refuge in them, would have been very 
incomprehensible beings had they recognized the land- 
ownership of such as survived. When the pirate Danes, 
who in later days ascended the rivers, had burnt the 
homesteads they came upon, slaughtered the men, violated 
the women, tossed children on pikes or sold them in the 
market place, they must have undergone a miraculous 
transformation had they thereafter inquired to whom the 
Marks belonged, and admitted the titles of their victims 
to them. And similarly when, two centuries later, after 
constant internal wars had already produced military rulers 
maintaining quasi-feudal claims over occupiers of lands, 
there came the invading Normans, the right of conquest 
once more overrode such kinds of possession as had grown 



THE RIGHTS TO THE USES OF NATURAL MEDIA. 89 

up, and still further merged communal proprietorship in 
that kind of individual proprietorship which characterized 
feudalism. Victory, which gives unqualified power over the 
defeated and their belongings, is followed, according to the 
nature of the race, by the assertion of universal ownership, 
more or less qualified according to the dictates of policy. 
While in some cases, as in Dahomey, there results absolute 
monopoly by the king, not only of the land but of every- 
thing else, there results in other cases, as there resulted in 
England, supreme ownership by the king with recognized 
sub-ownerships and sub-sub-ownerships of nobles and their 
vassals holding the land one under another, on condition 
of military service : supreme ownership being, by implica- 
tion, vested in the crown. 

Both the original state and the subsequent states have 
left their traces in existing land-laws. There are many local 
rights which date from a time when " private property in 
land, as we now understand it, was a struggling novelty."* 

" The people who exercise rights of common exercise them by a title 
which, if we could only trace it all the way back, is far more ancient than 
the lord's. Their rights are those which belonged to the members of 
the village community long before manors and lords of the manor were 
heard of."f 

And anyone who observes what small tenderness for the 
rights of commoners is shown in the obtainment of 
Inclosure-Acts, even in our own day, will be credulous 
indeed if he thinks that in ruder times the lapse of com- 
munal rights into private rights was equitably effected. 
The private ownership, however, was habitually incomplete; 
since it was subject to the claims of the over-lord, and 
through him, again, to those of the over-over-lord : the 
implication being that the ownership was subordinate to 
that of the head of the community. 

" No absolute ownership of land is recognized by our law-books except in 
the Crown. All lands are supposed to be held, immediately, or mediately, 

* The Land Laws, by Sir Fredk. Pollock, Bart., p. 2. f Ibid., p. 6. 



90 JUSTICE. 

of the Crown, though no rent or services may be payable, and no grant from 
the Crown on record."* 

And that this conception of land-ownership survives, alike 
in theory and in practice, to the present time, is illustrated 
by the fact that year by year State-authority is given for 
appropriating land for public purposes, after making due 
compensation to existing holders. Though it may be 
replied that this claim of the State to supreme land-owner- 
ship is but a part of its claim to supreme ownership in 
general, since it assumes the right to take anything on 
giving compensation ; yet the first is an habitually-enforced 
claim, while the other is but a nominal claim nob enforced ; 
as we see in the purchase of pictures for the nation, to effect 
which the State enters into competition with private buyers, 
and may or may not succeed. 

It remains only to point out that the political changes 
which have slowly replaced the supreme power of the 
monarch by the supreme power of the people, have, by 
implication, replaced the monarch's supreme ownership of 
the land by the people's supreme ownership of the land. 
If the representative body has practically inherited the 
governmental powers which in past times vested in the 
king, it has at the same time inherited that ultimate 
proprietorship of the soil which in past times vested in him. 
And since the representative body is but the agent of the 
community, this ultimate proprietorship now vests in the 
community. Nor is this denied by land-owners themselves. 
The report issued in December, 1889, by the council of 
" The Liberty and Property Defence League/' on which 
sit several Peers and two judges, yields proof. After 
saying that the essential principle of their organization, 
" based upon recorded experience," is a distrust of 
" officialism, imperial or municipal," the council go on 
to say that — 

" This principle applied to the case of land clearly points to individuaJ 

* The Land Laws, by Sir Fredk. Pollock, Bart., p. 12. 



THE RIGHTS TO THE USES OP NATURAL MEDIA. 91 

ownership, qualified by State-suzerainty. . . . The land can of course 
be ' resumed ' on payment of full compensation, and managed by the 
1 people ' if they so will it." 

And the badness of the required system of administration is 
the only reason urged for maintaining the existing system of 
land-holding: the supreme ownership of the community being 
avowedly recognized. So that whereas, in early stages, 
along with the freedom of each man, there went joint 
ownership of the soil by the body of men ; and whereas, 
during the long periods of that militant activity by which 
small communities were consolidated into great ones, there 
simultaneously resulted loss of individual freedom and loss 
of participation in land-ownership ; there has, with the 
decline of militancy and the growth of industrialism, been 
a re-acquirement of individual freedom and a re-acquire- 
ment of such participation in land-ownership as is implied 
by a share in appointing the body by which the land is 
now held. And the implication is that the members of 
the community, habitually exercising as they do, through 
their representatives, the power of alienating and using as 
they think well, any portion of the land, may equitably 
appropriate and use, if they think fit, all portions of the 
land. But since equity and daily custom alike imply that 
existing holders of particular portions of land, may not 
be dispossessed without giving them in return its fairly- 
estimated value, it is also implied that the wholesale 
resumption of the land by the community can be justly 
effected only by wholesale purchase of it. Were the 
direct exercise of ownership to be resumed by the com- 
munity without purchase, the community would take, 
along with something which is its own, an immensely 
greater amount of something which is not its own. Even 
if we ignore those multitudinous complications which, in 
the course of century after century, have inextricably 
entangled men's claims, theoretically considered — even if 
we reduce the case to its simplest theoretical form ; wo 
must admit that all which can be claimed for the community 



92 JUSTICE. 

is tlie surface of the country in its original unsubdued state. 
To all that value given to it by clearing, breaking-up, 
prolonged culture, fencing, draining, making roads, farm 
buildings, &c, constituting nearly all its value, the com- 
munity has no claim. This value has been given either 
by personal labour, or by labour paid for, or by ancestral 
labour ; or else the value given to it in such ways has been 
purchased by legitimately earned money. All this value 
artificially given vests in existing owners, and cannot with- 
out a gigantic robbery be taken from them. If, during 
the many transactions which have brought about existing 
land-ownership, there have been much violence and much 
fraud, these have been small compared with the violence and 
the fraud which the community would be guilty of did it 
take possession, without paying for it, of that artificial 
value which the labour of nearly two thousand years 
has given to the land. 

§ 53. Beverting to the general topic of the chapter — 
the rights to the uses of natural media — it chiefly concerns 
us here to note the way in which these rights have gradually 
acquired legislative sanctions as societies have advanced to 
higher types. 

At the beginning of the chapter we saw that in modern 
times there have arisen legal assertions of men's equal 
rights to the uses of light and air : no forms of social 
organization or class-interests having appreciably hindered 
recognition of these corollaries from the law of equal 
freedom. And we have just seen that by implication, if 
not in any overt or conscious way, there has in our days 
been recognized the equal rights of all electors to supreme 
ownership of the inhabited area — rights which, though 
latent, are asserted by every Act of Parliament which 
alienates land. Though this right to the use of the Earth, 
possessed by each citizen, is traversed by established 
arrangements to so great an extent as to be practically 



THE RIGHTS TO THE USES OP NATURAL MEDIA. 93 

suspended; yet its existence as an equitable claim cannot 
be denied without affirming that expropriation by State- 
decree is inequitable. The right of an existing holder of 
land can be equitably superseded, only if there exists a 
prior right of the community at large ; and this prior 
right of the community at large consists of the sum of 
the individual rights of its members. 



Note. Various considerations touching this vexed 
question of land-ownership, which would occupy too much 
space if included here, I have included in Appendix B. 



CHAPTER XII. 

THE EIGHT OF PEOPEETY. 

§ 54. Since all material objects capable of being owned, 
are in one way or other obtained from the Earth, it results 
that the right of property is originally dependent on the 
right to the use of the Earth. While there were yet no 
artificial products, and natural products were therefore 
the only things which could be appropriated, this was an 
obviously necessary connexion. And though, in our 
developed form of society, there are multitudinous posses- 
sions, ranging from houses, furniture, clothes, works of 
art, to bank-notes, railway-shares, mortgages, government 
bonds, &c, the origins of which have no manifest relation 
to use of the Earth; yet it needs but to remember 
that they either are, or represent, products of labour, that 
labour is made possible by food, and that food is obtained 
from the soil, to see that the connexion, though remote 
and entangled, still continues. Whence it follows that a 
complete ethical justification for the right of property, is 
involved in the same difficulties as the ethical justification 
for the right to the use of the Earth. 

The justification attempted by Locke is unsatisfactory. 
Saying that " though the Earth and all inferior creatures 
be common to all men, yet every man has a property in 
his own person," and inferring that " the labour of his 
body, and the work of his hands," are therefore his, he 
continues : — " Whatever then he removes out of the state 



THE RIGHT OF PROPERTY. 95 

that nature hath provided and left it in, he hath mixed his 
labour with, and joined to it something that is his own, and 
thereby makes it his property." But one might reply 
that as, according to the premises, "the Earth and all 
inferior creatures " are " common to all men," the consent 
of all men must be obtained before any article can be equit- 
ably " removed from the common state nature hath placed 
it in." The question at issue is, whether by labour expended 
in removing it, a man has made his right to the thing 
greater than the pre-existing rights of all other men put 
together. The difficulty thus arising may be avoided 
however. There are three ways in which, under savage, 
semi-civilized, and civilized conditions, men's several rights 
of property may be established with due regard to the equal 
rights of all other men. 

Among the occupiers of a tract who gather or catch the 
wild products around, it may be tacitly, if not overtly, 
agreed that having equal opportunities of utilizing such 
products, appropriation achieved by any one shall be 
passively assented to by the others. This is the general 
understanding acted upon by the members of hunting 
tribes. It is instructive to observe, however, that among 
some of them there is practically, if not theoretically, 
asserted the qualification indicated above ; for usage 
countenances a partial claim by other tribes-men to game 
which one of the tribe has killed : apparently implying the 
belief that this prey was in part theirs before it was killed. 
Schoolcraft tells us concerning the Comanches that — 

" They recognize no distinct rights of meum and tuum, except to personal 
property ; holding the territory they occupy, and the game that depastures 
upon it, as common to all the tribe : the latter is appropriated only by 
capture. ... He who kills the game retains the skin, and the meat is 
divided according to the necessity of the party, always without contention, 
as each individual shares his food with every member of the tribe." 

Kindred usages and ideas are found among the Chippe- 
wayans. Schoolcraft writes : — 

" In the former instance [when game is taken in inclosures by a hunting 



96 JUSTICE. 

party], the game is divided among those who have been engaged in pursuit 
of it. In the latter [when taken in private traps] it is considered as private 
property : nevertheless, any unsuccessful hunter passing by, may take a 
deer so caught, leaving the head, skin, and saddle for the owner." 

The quasi- equitable nature of these several arrangement s, 
vaguely, if not definitely, regarded as right, will be fully 
appreciated by any one who is joint tenant of a fishing, 
or is privileged along with other guests to utilize one, and 
who is conscious of annoyance if a co-tenant, or companion 
guest, makes undue use of it : a feeling which would be still 
stronger were an unfair share of food appropriated as well 
as an unfair share of sport. 

Passing from the hunting stage to the semi-settled stage, 
we meet with usages having the same general implications. 
The occupied area, instead of being equally available by all 
for gathering and catching the food it spontaneously yields, 
becomes equally available by all for growing food ; and the 
products of labour in the last case, like the achievements 
of labour in the first, are owned by those who expend the 
labour. It is perceived that the assent of the clan to 
ownership of food grown on an appropriated portion by 
any one, is implied in the assumptions of kindred owner- 
ships, similarly established, by all others. As shown by the 
Russian tenures described in the last chapter, the indefinite 
understanding thus arising, passes eventually into a definite 
understanding : there is a partition of the land into equal 
portions; a farming of each portion by its appointed 
owner; and a recognition of the produce as his property. 
A kindred understanding existed among the Irish in the 
time of Henry II. and later. " The land belonging to the 
tribe was shared among its members, but re-divided among 
them at certain intervals of years " : the implication being 
that, by general agreement, whatever the individual 
obtained from the land by his labour under these con- 
ditions was exclusively his. In this case then, as in the 
first, the right of property arises in conformity with the 
law of equal freedom. 



THE RIGHT OF PROPERTY. 97 

Though we cannot say that ownership of property, thus 
arising, results from actual contract between each member 
of the community and the community as a whole, yet there 
is something like a potential contract; and such potential 
contract might grow into an actual contract if one part of 
the community devoted itself to other occupations, while 
the rest continued to farm: a share of the produce being in 
such case payable by agreement to those who had ceased to 
be farmers, for the use of their shares of the land. We have 
no evidence that such a relation between occupiers and the 
community, with consequent authorized rights of property 
in the produce which remained after payment of a portion 
equivalent to rent, has ever arisen ; for, as we have seen, 
the original ownership by the community has habitually 
been usurped by internal or external aggressois, and the 
rent, taking the shape, if not of produce, then of labour or 
military service, has been habitually paid to the usurper . 
a state of things under which equitable rights of property, 
in common with equitable rights of all kinds, are submerged. 
But out of such usurpations there has grown up, as we 
have seen, ownership by the State and tenancy under it; 
from which there may again arise a theoretically equitable 
right of property. In China, where "the land is all held 
directly from the Grown" "on payment of an annual tax/' 
with "composition for personal service to the government," 
the legitimate proprietorship of such produce as remains 
after payment of rent to the community, can be asserted 
only on the assumption that the emperor stands for the 
community. In India, where the government is supreme 
land-owner, and where, until the zemindar system 
was established, it was the direct receiver of rents, the 
derivation of a right of property by contract between the 
individual and the community can be still less asserted 
without a strained interpretation. Nor at home, where the 
theory that each land-owner is a tenant of the crown is little 
more than a theory, is there any better fulfilment of the 



98 JUSTICE. 

ethical requirement. Only here and there, where State- 
ownership is not potential but actual, and ordinary 
rents are paid by occupiers to the crown (which has now 
in such cases come to be identified with the community), 
has there been consequently established that kind of use 
of the Earth which gives a theoretically valid basis to the 
right of private property. 

But admitting that the establishment of an ethically- 
complete right of property is beset with difficulties like 
those which beset the establishment of an ethically-complete 
right to the use of the Earth, we are nevertheless shown by 
a survey of the facts which existing primitive societies 
present, and the facts traceable in the early histories of 
civilized societies, that the right of property is originally 
deducible from the law of equal freedom ; and that it ceases 
to be so deducible only when the other corollaries from the 
law of equal freedom have been disregarded. 

§ 55. This deduction, early recognized in custom and 
afterwards formulated by legislators, has come to be 
elaborated and enforced more and more fully as society 
has developed. 

That the right of property was originally conceived as a 
claim established by labour which was carried on without ag- 
gressing on others, is seen in the fact that among the rudest 
peoples, who have developed the conception to the smallest 
extent, there is property in weapons, implements, dress and 
decorations — things in which the value given by labour 
bears a specially large ratio to the value of the raw material. 
When with such articles we join huts, which, however, being 
commonly made by the help of fellow men who receive 
reciprocal aid, are thus less distinctly products of an indi- 
vidual's labour, we have named about all the things in 
which, at first, the worth given by effort is great in 
comparison with the inherent worth ; for the inherent 
worth of the wild food gathered or caught is more obvious 



THE EIGHT OF PROPERTY. 99 

than the worth of the effort spent in obtaining it. And 
this is doubtless the reason why, in the rudest societies, the 
right of property is more definite in respect of personal 
belongings than in respect of other things. 

That recognition of the right of property is originally 
recognition of the relation between effort and benefit, is, 
at a later stage, shown in the regime of the patriarchal 
group and the house-community; for though, as Sir Henry 
Maine points out, the head of the group was at first 
nominally owner of all its possessions, yet, in fact, he held 
its possessions in trust, and each of its members, while he 
did his share in the carrying on of the joint labours, had his 
share in the proceeds. Though this arrangement — quasi- 
socialistic within the group, but competitive outside the 
group — does not give definite expression to the right of 
individual property, it tacitly asserts that labour must bring 
to the labourer something like its equivalent in produce. 
And the tacit assertion passes into an overt assertion in 
those cases where members of the group acquire property 
\ virtue of labour expended by them apart from the labours 

the rest. 

To trace the development of the right of property as 
established by rulers and administered by their agents, 
setting out with, the interdict on theft in the Hebrew 
commandments, and continuing down to modern days, in 
which proprietorships of all kinds have been legally formu- 
lated in multitudinous detail and with, great precision, would 
be no less out of place than it would be superfluous. It 
suffices for present purposes to note that this implication of 
the principle of justice, perceived from the first perhaps 
more clearly than any other, has gained in the course of 
social progress increased definiteness of recognition as well 
as increased extension and increased peremptoriness ; so 
that now, breach of the right of property by unauthorized 
appropriation of a turnip or a few sticks, has become a 



100 JUSTICE. 

punishable offence ; and there is ownership of a song, of a 
pattern, of a trade-mark. 

§ 56. Supposing themselves to be justified, and indeed 
enjoined, by moral principle, many in our days are seeking 
to over-ride this right. They think it wrong that each man 
should receive benefits proportionate to his efforts — deny 
that he may properly keep possession of all which his 
labour has produced, leaving the less capable in possession 
of all which their labours have produced. Expressed in 
its briefest form, their doctrine is — Let unlike kinds and 
amounts of work bring like shares of produce — let there be 
" equal division of unequal earnings." 

That communism implies violation of justice as defined 
in foregoing chapters, is manifest. When we assert the 
liberty of each bounded only by the like liberties of all, we 
assert that each is free to keep for himself all those 
gratifications and sources of gratification which he procures 
without trespassing on the spheres of action of his neigh- 
bours. If, therefore, one obtains by his greater strength, 
greater ingenuity, or greater application, more gratifications 
or sources of gratification, than others, and does this without 
in any way trenching on the spheres of action of others, the 
law of equal freedom assigns him exclusive possession of all 
such extra gratifications and sources of gratification; nor 
can others take them from him without claiming for 
themselves greater liberty of action than he claims, and 
thereby violating the law. 

In past times the arrangements made were such that the 
few superior profited at the expense of the many inferior. 
It is now proposed to make arrangements such that the 
many inferior shall profit at the expense of the few superior. 
And just as the old social system was assumed by those 
who maintained it to be equitable, so is this new social 
system assumed to be equitable by those who propose it. 
Being, as they think, undoubtedly right, this distribution 



THE RIGHT OP PROPERTY. 101 

may properly be established by force; for the employment 
of force, if not avowedly contemplated, is contemplated by 
implication. With a human nature such as has been known 
throughout the past and is known at present, one who, by 
higher power, bodily or mental, or greater endurance of 
work, gains more than others gain, will not voluntarily 
surrender the excess to such others : here and there may 
be found a man who would do this, but he is far from being 
the average man. And if the average superior man will 
not voluntarily surrender to others the excess of benefit 
gained by his superiority, the implication is that he must be 
obliged to do this, and that the use of force to oblige him is 
justifiable. That the many inferior are physically able thus 
to coerce the few superior is agreed on both sides; but the 
assumption of the communists is that the required coercion 
of the minority who are best by the majority who are worst 
would be equitable. 

After what was said in the early chapters of this Part, it 
scarcely needs pointing out that a system established in 
pursuance of this doctrine would entail degeneration of 
citizens and decay of the community formed by them. 
Suspension of that natural discipline by which every kind 
of creature is kept fit for the activities demanded by the 
conditions of life, would inevitably bring about unfitness 
for life and either prompt or slow disappearance. 

§ 57. While absolute ethics thus asserts the right of 
property, and while no such breach of it as is implied by 
the schemes of communists is warranted by that relative 
ethics which takes account of transitional needs, relative 
ethics dictates such limitation of it as is necessitated for 
defraying the costs of protection, national and individual. 

The truth recognized at the outset, that the preservation 
of the species, or that variety of it constituting a nation, is 
an end which must take precedence of individual preserva- 
tion, has already been cited as justifying that subordination 



102 JUSTICE. 

of the right to life wliicli is implied by exposure to possible 
death in defensive war, and as also justifying that sub- 
ordination of the right to liberty which military service and 
subjection necessitate. Here it must be again cited as 
affording a legitimate reason for appropriating such portions 
of the possessions and the earnings of individuals, as may 
be required for adequately resisting enemies. But while 
there is thus a quasi-ethical justification for whatever 
encroachment on the right of property is necessitated for 
the purposes of defensive war, there is no justification for 
any such encroachment for the purposes of offensive war. 

No less manifest is it that the right of property is 
legitimately subject to one further restriction. Property 
must be trenched upon for supporting those public admin- 
istrations by which the right of property, and all other 
rights, are enforced. In a society wholly composed of men 
who duly respected one another's claims, no such partial 
invasion of the right of property would be called for; but 
in existing societies and in such societies as are likely to 
exist for a long time to come, the nearest approach to 
fulfilment of the law of equal freedom is made when the 
various deduced rights are sacrificed to the extent needful 
for preservation of the remainders. Eelative ethics, there- 
fore, warrants such equitably-distributed taxation as is 
required for maintaining order and safety. 



CHAPTER XIII. 

THE EIGHT OF INCOEPOEEAL PEOPEETT. 

§ 58. Even the dog, which not only fights to retain a 
bone he has found but fights also to preserve the coat or 
other object left in his charge by his master, can recognize 
ownership of a visible, tangible object; and hence it is 
clear that only a small reach of intelligence is needed for 
framing in thought the right of material property. But a 
much greater reach of intelligence is called for when the 
property is neither visible nor tangible. Constructive 
imagination is requisite for conceiving the existence of a 
mental product ; and a higher constructive imagination is 
requisite for conceiving that a product of mental labour 
may as truly be considered property as a product of 
manual labour. 

That the two stand on the same footing is demonstrable, 
whether we contemplate the positive or the negative 
element of the right. Remembering that justice under 
its positive aspect consists in the reception by each 
individual of the benefits and evils of his own nature 
and consequent conduct, it is manifest that if any indi- 
vidual by mental labour achieves some result, he ought to 
have whatever benefit naturally flows from this result. 
Justice, as we have defined it, requires that the connexion 



104 JUSTICE. 

between conduct and consequence in this case shall not be 
traversed any more than in any other case : the claim to 
the anticipated good is a valid claim. 

No less obvious is it that the negative element of justice, 
which, among associated creatures, restrains the activities 
of each within the limits imposed by the like activities of 
all, forbids appropriation of another's mental product; or 
rather, forbids use of it without the assent of the producer, 
if it is of a kind from the use of which by others the 
producer sought advantage. Supposing a mental product 
elaborated by A, is, without his assent, used to their own 
advantage by B, C, and D, they commit breaches of the 
law of equal freedom; since they have severally benefited 
by utilizing the product of A's mental labour without 
affording A an opportunity of benefiting by utilizing any 
equivalent products, material or mental, of their own labour. 
Should it be replied that A's mental product is not taken 
away from him by others but only used by them; then the 
rejoinder is that with mental products, as with material 
products, the use by others may be the contemplated source 
of profit. One who builds a house and lets it, or makes a 
carriage which travellers hire, is held to be defrauded by 
those who occupy the house or hire the carriage without 
payment. He did not provide for his own use but for 
others' use and he does not receive that return the expecta- 
tion of which prompted the building or the making. Even 
if no express contract has been made to pay the rent or 
hire, the owner is admittedly injured. Similarly, then, 
though one who has elaborated a mental product is not 
deprived of it by those who use it, yet even in the absence 
of any definite understanding with them, he is defrauded 
if others use it without giving him the benefit for which 
he worked. 

There are two classes of mental products from others' 
use, or reception, of which, the producers expect advan- 



THE RIGHT OF INCORPOREAL PROPERTY. 105 

fcage : those embodied in books, musical compositions, 
works of plastic art, &c, and those embodied in inventions, 
mechanical or other. We will consider these separately. 

§ 59. A man may read, listen and observe to any extent 
without diminishing the liberty of others to do the like. 
The knowledge thus obtained may be digested, re-organized 
and new knowledge educed from it by its possessor, without 
trespassing against his fellows. If he keeps to himself 
these derived conclusions valuable for guidance, or elabo- 
rated thoughts valuable for beauty, no one can say that he 
exceeds the limits of individual freedom ; and if, instead of 
keeping them to himself, he decides to publish them, he 
may without aggressing upon any one impose his own 
terms. Others remain free to accept or refuse, and if they 
refuse, remain as they were before. But if others disregard 
his terms — if, having sold to them copies of his book, either 
himself or through an agent, on the tacit understanding that 
for so much money he gives, along with the printed paper, 
the right of reading and of lending to read, but not the 
right of reproduction ; then any one who reproduces breaks 
the tacitly imposed conditions and commits an aggression. 
In return for the money paid, he takes a benefit far greater 
than that which was intended to be given for the money. 

Strangely enough, there are intelligent men who contend 
that when a book has been issued it becomes public 
property, and that it is a corollary from the principles of 
free trade that any one who pleases may reprint it and sell 
copies for his own advantage. They assert that a copy- 
right is a monopoly — ought not to be considered a form of 
private property. But if nobody's property is taken by 
one who infringes copyright, how can the thing taken be 
of value ? And if the thing taken be of no value, then the 
man who takes it would be no worse off if prevented from 
taking it. If he would be worse off, then clearly he has 
got something of value. And since this something of value 



106 JUSTICE. 

is not a natural product, the obtainment of it must be at 
the expense of some one who artificially produced it. As I 
some years since argued : — 

" Those who, as members of the Copyright Commission, 
or as witnesses before it, have aimed, if not to abolish 
copyright, yet to restrict it in ways which would go far 
towards its abolition, have done so in the alleged interests 
of free-trade, and have sought to discredit the author's 
claim, as now recognized, by calling it a monopoly. In 
the politico-economic sense a monopoly is an arrangement 
under which a person or body of persons is given by law 
the exclusive use of certain natural products, or agencies, 
or facilities, which, in the absence of such law, would be 
open to all ; and the opponent of a monopoly is one who, 
asking nothing from the monopolist in the way of direct or 
indirect assistance, asks only that he also may use these 
same natural products, or agencies, or facilities. He wishes 
to carry on a business which in not the remotest way makes 
him dependent on the monopolist, but which he can carry 
on as well or better in the absence of the monopolist, and 
in the absence of everything done by him. Turn now 
to the commerce of literature, and ask how stands the 
so-called free-trader and the so-called monopolist ? Does 
the so-called monopolist (the author) forbid the so-called 
free-trader (the reprinter) to use any of those appliances 
or processes, intellectual or mechanical, by which books 
are produced ? No. These remain open to all. Does 
the so-called free-trader wish simply to use these open 
facilities independently, just as he might do if the so- 
called monopolist and his works were absent ? No. He 
wishes to be dependent — he wishes to get advantages which 
he could not have were the so-called monopolist and his 
works absent. Instead of complaining, as the true free- 
trader does, that the monopolist is an obstacle put in his 
way, this pseudo free-trader complains that he may not 
utilise certain aids which have arisen from the labour of 



THE EIGHT OP INCORPOEEAL PROPEETY. 107 

the man whom he calls a monopolist. The true free-trader 
wishes only to use natural facilities, and complains of an 
artificial impediment. The pseudo free-trader, not content 
with the natural facilities, complains that he may not use, 
without buying it, an artificial aid. Certain opponents of 
copyright expressed astonishment before the Commission 
that authors should be so blinded by self-interest as not 
to see that in defending their claims, as now recognized, 
they were defending a monopoly. These authors might fitly 
express their astonishment that professed exponents of 
politico-economical principles should confound the case 
of a man who wishes to trade just as he might do had 
a certain other man never existed, with the case of a man 
who wishes to trade in a way that would be impossible 
had a certain other man never existed. The entire anti- 
copyright argument rests on the confusion of two things 
radically opposed, and with the establishment of the proper 
distinction the argument disappears."" (Edinburgh Review, 
Oct. 1878, pp. 329-30.) 

Considered, then, as a deduction from the fundamental 
principle of justice, copyright cannot, I think, be questioned 
with any show of reason. 

§ 60. First customs, and then laws, have recognized the 
claims of mental producers. Originally, authors "were 
rewarded by the contributions of the audience or by the 
patronage of those illustrious persons in whose houses they 
recited their works : n disregard of the obligation to remune- 
rate being regarded as mean, if not dishonest. In later 
Roman times, this proprietory right had become so far 
established as to have a mercantile value. Mr. Copinger 
points out that several ancient authors sold their produc- 
tions; viz. Terence his Eunuchus and Hecyra, and Statiushis 
Agave : the implication being that the copyists had acquired 
practically, if not by law, exclusive use of the MSS. In 
our own country, the equitable claim of the author has for 



108 JUSTICE. 

tliese two centuries been enforced. An Act of Charles II. 
forbad the printing of a work without the writer's assent ; 
and under this act, copyrights were so far established as to 
be bought and sold. In 1774 it was decided that common 
law gives the author and his assigns sole right of publica- 
tion in perpetuity ; but that the period had been abridged 
by a previous statute to a term of years. The principle 
was subsequently extended to other forms of mental pro- 
ducts, as specified in the essay by Mr. Robertson — to 
certain works of art by 8 Geo. II., c. 13, 7 Geo. III., c. 38, 
and 38 Geo. III., c. 71 (models and casts) ; to dramatic 
productions by 3 & 4 Will. IV., c. 15; to lectures by 5 & 6 
Will. IV., c. 65 ; to musical productions by 5 & 6 Vict., c. 
45; to lithographs by 15 & 16 Vict., c. 12, and to paintings 
in 1862. 

By those who have legislated, as well as by those who 
have considered the question from an ethical point of view, 
the proper duration of copyright has been a problem not 
easily solved : should it be for the author and his 
descendants without limit, or for his life and a term of years 
after, or for his life only ? There is no obvious reason why 
property of this kind should not be subject to the same laws 
of possession and bequest as other property. If it be 
said that the language, knowledge, and other products of 
past culture used by the author or artist, belong to 
society at large ; the reply is that these mental products of 
civilization are open to all, and that an author or artist has 
not by using them diminished the ability of others to use 
them. Without abstracting anything from the common 
stock, he has simply combined with certain components of 
it something exclusively his own — his thoughts, his con- 
clusions, his sentiments, his technical skill : things which 
more truly belong to him than do any visible and tangible 
things to their owners; since all of these contain raw 
material which has been removed from the potential use of 
others. So that in fact a production of mental labour may 



THE RIGHT OF INCORPOREAL PROPERTY. 109 

be regarded as property in a fuller sense than may a 
product of bodily labour ; since tliat which constitutes its 
value is exclusively created by the worker. And if so, 
there seems no reason why the duration of possession in 
this case should not be at least as great as the duration of 
possession in other cases. 

Leaving this question, however, it is enough to note here 
that the right of property in this species of mental product, 
above deduced from the formula of justice, has, in later 
civilized times, come to be embodied in law ; and that the 
embodiment of it in law has become more extensive and 
more specific as social development has become higher. 

§ .61. What has been said above in relation to books 
and works of art, applies, by simple change of terms, to 
inventions. In imagining and bringing to bear any new, 
or partially new, mechanical appliance, or in devising some 
process different from, or better than, those before known, 
the inventor is making no greater nse of pre-existing ideas, 
tools, materials, processes, than every other person may 
make. He abridges no one's liberty of action. Hence, 
without overstepping the prescribed limits, he may claim 
the exclusive benefit of his invention ; and, if he discloses 
the secret, may, without aggressing upon any one, dictate 
the terms for utilization. While, contrariwise, another 
person who doe3 not accede to his terms, cannot utilize his 
invention without breach of the law of equal freedom ; since 
he appropriates a product of the inventor's labour without 
allowing the inventor to appropriate an equivalent product 
of his labour or an equivalent possession of some other 
kind. 

That one who has spent years in thinking and experi- 
menting, often joining expenditure of money with his brain- 
work and hand-work, should not be admitted to have 
an equitable claim to the resulting advantage, is a fact 
discreditable to the average conscience; and it is the more 



110 JUSTICE. 

discreditable when taken in connexion with the fact that 
various claims implying no labour or sacrifice are not only 
allowed but insisted upon. A speculator who makes money 
by a rise in the share-market, a sinecurist who has long 
received a large salary for doing nothing, and even a 
descendant of a king's mistress who is in receipt of a pen- 
sion that was granted in perpetuity, has his conventionally- 
established rights tenderly considered ; while the mechanic 
who, working early and late, perhaps to the destruction of 
his health and the frittering away of all his means, has at 
length perfected a machine of marvellous efficiency, is not 
supposed to have acquired any " vested interest" in this 
outcome of the vital energies he has irrecoverably spent 
upon it. Most of his fellow men are quite willing that he 
should sacrifice time and money and labour, meanwhile 
jeering at him as a visionary schemer ; but when to their 
astonishment he succeeds, and the beneficial results flowing 
from his achievement become manifest, there arises the 
exclamation — " Oh ! this is a monopoly and ought not to be 
tolerated." Even should those in power take measures to 
protect him and others such, so that if he can pay in fees 
the sum demanded he may take out a patent,*" the measures 
are taken not on the score of equity but on the score of 
policy. " A patent is not a thing which can be claimed as a 
right," the lawyers say ; but it is intended to " act as a 
stimulus to industry and talent." So that though the 
taking of the smallest material product — as a penny filched 
from the till by a shop-boy — is a punishable offence, this 
mental product, great as its worth and immense as the 
labour it has cost, may, in the absence of certain legal 
formalities, be turned by a capitalist to immense profit, 
without punishment and without disgrace. 

Even were an invention of no benefit to society unless 
thrown open to unbought use, there would still be no just 
ground for disregarding the inventor's claim; any more 
* Not many years since the total cost was several hundred pounds. 



THE RIGHT OF INCORPOREAL PROPERTY. Ill 

tlian for disregarding the claim of one who labours on his 
farm for his own benefit and not for public benefit. But as 
it is, society unavoidably gains immensely more than the 
inventor gains. Before he can receive any advantage from 
his new process or apparatus, he must confer advantages 
on his fellow men — must either supply them with a better 
article at the price usually charged, or the same article at a 
lower price. If he fails to do this, his invention is a dead 
letter ; if he does it, he makes over to the world at large 
nearly all the new mine of wealth he has opened. By the 
side of the profits which came to Watt from his patents, 
place the profits which his improvements in the steam- 
engine have since brought to his own nation and to all 
nations, and it becomes manifest that the inventor's share 
is infinitesimal compared with the share mankind takes. 
And yet there are not a few who would appropriate even 
his infinitesimal share ! 

But insecurity of this kind of mental property, like 
insecurity of material property, brings disastrous results. 
As in a society so governed that one who accumulates 
wealth cannot keep it, an unprosperous state results' from 
lack of capital ; so, among a people who ignore the inventor's 
claims, improvements are inevitably checked and industry 
suffers. For, on the average, ingenious men will decline 
to tax their brains without any prospect of returns for 
their labours. 

Here, however, we are chiefly concerned to observe that, 
if not from motives of equity, then from motives of policy 
the inventor's claim has slowly been established by law. 
Though, in our own country, patents were originally 
granted as matters of favour ; and though, for a long period, 
they were confounded with monopolies rightly so called; 
yet when, in 1623, monopolies rightly so called were made 
illegal, there was recognized a distinction between them 
and the exclusive rights granted to inventors. Besides the 
belief that it was expedient to encourage inventors, there 



112 JUSTICE. 

was perhaps a dim perception that while, in the case of a 
monopoly rightly so called, other people are in no way 
indebted to the monopolist for ability to carry on their 
activities, but would have done as well or much better had he 
never existed ; in the case of the so-called monopoly of an 
inventor, other people who use his invention are indebted 
to him, and had he never existed would have been unable 
to do that which they now do with his help. Whether with 
or without any vague consciousness of this, the inventor's 
claim, for several centuries legislatively enforced, has of 
late come to be more carefully regarded; and, by great 
reduction of fees, the impediments in the way of obtaining 
legal protection have been reduced. To which add that 
there has been a like growing recognition in the laws of 
other countries, and a much greater one in America ; with 
a resulting superiority in labour-saving appliances. 

A restriction of the right thus set forth and justified, 
must be named. It is a truth, made familiar by modern 
experience, that discoveries and inventions, while in part 
results of individual genius, are in part results of pre- 
existing ideas and appliances. One of the implications, 
also made familiar by modern experience, is that about the 
period when one man makes a discovery or invents a 
machine, some other man, possessed of similar knowledge 
and prompted by a like imagination, is on the way to the 
same discovery or invention ; and that within a moderate 
period this discovery or invention is tolerably certain to be 
made elsewhere — possibly by more than one. A long- 
continued exclusive use of his invention would therefore be 
inconsistent with other equitable claims likely to arise; and 
hence there is need for a limitation of the period during which 
he may rightly receive protection. ' Over how many years the 
protection should extend, is a question which cannot be 
answered here; and, indeed, cannot be answered at all in 
any but an empirical manner. To estimate the proper 
period account should be taken of the observed intervals of 



THE RIGHT OF INCORPOREAL PROPERTY. 113 

time commonly elapsing between similar or identical inven- 
tions made by different men. There might fitly be some 
recognition of the prolonged thought and persevering 
efforts bestowed in bringing the invention to bear; and 
there should also enter into the calculation an estimate, 
based on evidence, of the probable interval during which 
exclusive use of the invention should be insured to make 
possible an adequate return for labour and risk. Obviously 
the case is one in which the relations of the individual to 
other individuals and to society, are so involved and so 
vague, that nothing beyond an approximately equitable 
decision can be reached. 

§ 62. Yet another kind of that which we may class as 
incorporeal property has' to be here dealt with — a kind dis- 
tinguishable from the kinds dealt with above, in the respect 
that it does not finally issue in physical benefit, but issues 
in mental benefit — in the agreeable emotion caused by 
other men's approval. 

This form of incorporeal property is, indeed, an accom- 
paniment of the forms arising from mental achievements. 
The reputation obtained by a poem, a history, a scientific 
treatise, a work of plastic art, or a musical composition, is 
regarded by the producer as part of the reward for his 
labour — often, indeed, the chief part. And at the same 
time that he is held entitled to the resulting credit, the 
endeavour made by another to obtain by plagiarism the 
whole or part of this credit, is regarded as a disgrace. 
Though there is no legal penalty for this kind of theft, yet 
there is a social penalty. Similarly with a discovery or an 
invention. Not the pecuniary profit only is recognized as 
rightly belonging to the originator, but also the applause 
appropriate to his ingenuity or insight; and reprobation 
is vented on one who tries to intercept this applause by 
pretending to be the inventor or the discoverer. Tacitly, 
if not overtly, the acquired share in the good opinion of 
6 



114 JUSTICE. 

fellow men is considered a tiling to be enjoyed ; while the 
usurpation of it is condemned as dishonest. The reputation 
gained is treated as incorporeal property. 

But another and far more important kind of incorporeal 
property is that which arises, not from intellectual achieve- 
ment, but from moral conduct. If the reputation brought 
by mental actions which take the form of production, may 
fitly be regarded as incorporeal property, still more may 
the reputation brought by mental actions issuing in rectitude, 
truthfulness, sobriety, and good behaviour at large, which 
we call character ; and if deprivation of the one is flagitious 
still more is deprivation of the other. Earned like other 
property by care, self-denial, perseverance, and similarly 
giving its owner facilities for gaining his ends and satisfying 
divers desires, the esteem of others is a possession, having 
analogies with possessions of a palpable nature. Indeed it 
has, like palpable possessions, a money value ; since to be 
accounted honest is to be preferred as one with whom 
dealings may be safely carried on, and to lose character is 
to lose business. But apart from this effect, an estate in 
the general good-will appears to many of more worth than 
one in land. By some great action to have won golden 
opinions, may be a richer source of gratification than to 
have obtained bank-stock or railway-shares. Hence, men 
who have invested their labour in noble deeds, and receive 
by way of interest the best wishes and cordial greetings of 
society, may be considered as having claims to these rewards 
of virtue, resembling the claims of others to the rewards of 
industry. Of course this is true not only of those who are 
distinguished by unusual worth ; it is true of all. To the 
degree in which each has legitimately gained a good repute, 
we must hold him entitled to it as a possession — a posses- 
sion which, without quoting the hackneyed saying of Iago, 
may be held of more value than any other. 

The chief way in which this product of good conduct 
differs from other mental products, is that though, like 



THE RIGHT OP INCORPOREAL PROPERTY. 115 

them, it may be taken away, it cannot be appropriated 
by the person who takes it away. This may, perhaps, be 
considered a reason for classing the interdict against injur- 
ing another's character as an interdict of negative bene- 
ficence rather than an interdict of justice : an illustration 
of the truth that the division of ethics into separate sections 
cannot, in all cases, be clearly maintained. Still, since a 
good reputation is acquired by actions carried on within the 
prescribed limits to actions, and is, indeed, partly a result 
of respect for those limits; and since one who destroys 
any or all of the good reputation so acquired, interferes 
with another's life in a way in which the other does not 
interfere with bis life ; it may be argued that the right to 
character is a corollary from the law of equal freedom. If 
it be said that whoever is thus injured may (in some cases 
at least) retaliate on the injurer, as we see in recrimination, 
or, as among the vulgar, in the mutual calling of names ; 
the reply is that, as shown in chapter VI, the law of equal 
freedom, rightly interpreted, does not permit exchange of 
injuries; and as it does not countenance physical retaliation 
neither does it countenance moral retaliation. So that 
though another's good character, when taken away, cannot 
be appropriated by the traducer, the taking of it away is 
still a breach of the law of equal freedom, in the same way 
that destroying another's clothes, or setting fire to his house, 
is a breach. 

This reasoning concerns only those cases in which the 
good reputation enjoyed has been rightly obtained, and 
does not touch those cases in which it has been obtained by 
deception or survives through others' ignorance. Conse- 
quently, it cannot be held that one who injures another's 
good reputation by stating facts at variance with it which 
are not generally known, breaks the law : he simply takes 
away that which ought not to have been possessed. What- 
ever judgment may be passed on his act, it cannot be 



116 JUSTICE. 

assimilated to acts in which the character taken away is 
one that is legitimately owned. Indeed, in many cases, his 
act is one which conduces to the welfare of others, and, in 
some cases, is prompted by the desire to prevent trespasses 
upon them. Hence, though it may be held punishable, 
in common with acts which take away character rightly 
possessed, there does not seem to be any ethical warrant 
for the punishment. 

There remains to be noticed the blameworthiness of those 
who aid and abet the taking away of character by repeating 
injurious statements without taking any trouble to ascertain 
their truth. At present those who circulate a calumny 
without inquiring into the evidence, or estimating the 
probability, are supposed by most people to have committed 
no offence; but, hereafter, it will perhaps be seen that 
they cannot be exonerated. Indeed in law they are not 
exonerated, but are liable to penalty. 

As in the preceding cases, the ethical requirements have, 
as just implied, grown into legal recognition. The for- 
bidding of false witness against a neighbour is of ancient 
date. Libel, even when directed against the dead, was 
punishable under the Roman law. In lower stages of 
civilization, however, protection of character by punishment 
of slanderers, was established chiefly in the interests of the 
superior. The Buddhist code prescribed a severe punish- 
ment for insulting speech against a man of the highest 
caste. During early times in Europe, men of position were 
supposed to preserve their characters, as well as their pos- 
sessions, by force of arms. Later there came legal protection 
of the higher from libels uttered by the lower, against 
whom the remedy by duel was not available. In the reign 
of Edward I, this remedy was initiated ; and it was more 
fully enacted, with this avowed purpose, by Eichard II. 
Instead of being a law for the advantage of a privileged 
class, the law of libel eventually became a law for the 
advantage of all classes ; and has, in our own days, come 



THE EIGHT OF INCOEPOREAL PROPERTY. 117 

to be constantly invoked with effect : indeed with too much 
effect, considering that that which may be regarded as fair 
criticism is sometimes held to be libellous. 

Here then, as before, a conclusion which may be deduced 
from the fundamental principle of equity, has, with the 
advance of society, acquired a legal embodiment. 



CHAPTER XIV. 

THE EIGHTS OF GIFT AND BEQUEST. 

§ 63. Complete ownership of anything implies power 
to make over the ownership to another; since a partial or 
entire interdict implies partial or entire ownership by the 
authority issuing the interdict, and therefore limits or over- 
rides the ownership. Hence, if the right of property is 
admitted, the right of gift is admitted. 

The last has, indeed, as deep a root as the first. If we 
refer back to those conditions to sustentation of the indi- 
vidual and of the species, from which the fundamental 
principles of ethics are deducible, we see that while indi- 
vidual preservation depends on the habitual maintenance 
of the natural relation between efforts and the products of 
efforts, the preservation of the species depends on the 
transfer of parts of such products, in either prepared or' 
crude forms, from parents to offspring. The ability to give 
away that which has been acquired, consequently underlies 
the life of every species, including the human species. 

Of course there cannot be assigned the same warrant for 
the right of gift to others than offspring. Of this, while we 
say, in the first place, that it is a corollary from the right 
of property, we may say, in the second place, that it is also 
a corollary from the primary principle of justice. The joint 
transaction of giving and receiving, directly concerns only 
the donor and the recipient; and leaves all other persons 



THE RIGHTS OP GIFT AND BEQUEST. 119 

unaffected in so far as their liberties to act are concerned. 
Though the handing over something possessed, by A to B, 
may affect C, D, E, &c., by negativing certain activities 
which, they proposed to pursue; such activities, contingent 
on events that might or might not happen, cannot be 
included among those activities which may not be hindered 
without aggressing upon them. Their spheres of action 
remain intact. 

If the right of gift to others than offspring had to be 
decided upon from an expediency point of view, strong 
reasons might be assigned for concluding that unrestrained 
giving should not be allowed. One who duly weighs the 
evidence furnished by the Charity Organization Society, as 
well as by individuals who have investigated the results of 
careless squandering of pence, will be inclined to think 
that more misery is caused by charit}' (wrongly so-called) 
than by all the crimes which are committed; and will 
perhaps infer that benefit would result if almsgiving were 
forbidden. Bat in this case, universal belief in the right 
is so strong that no one dreams of denying it for reasons 
of apparent expediency. 

Legislation clearly acknowledges this corollary from the 
law of equal freedom. Without going back in search of a 
law asserting the right of gift, which probably does not 
exist, it suffices to name the implied recognition among 
ourselves by an act of Elizabeth, which, while it asserts 
that a deed of gift is good against the grantor, makes it 
invalid if put in bar of the claims of creditors : implying, in 
fact, that while a man may give that which is his own, he 
may not give that which, in equity, belongs to others. 

§ 64. The right of gift implies the right of bequest; 
for a bequest is a postponed gift. If a man may legiti- 
mately transfer what he possesses to another, he may 
legitimately fix the time at which it shall be transferred. 
When he does this by a will, he partially makes the 



120 JUSTICE. 

transfer, but provides that the transfer shall take effect 
only when his own power of possession ceases. And his 
right to make a gift subject to this condition, is included 
in his right of ownership ; since, otherwise, his ownership 
is incomplete. 

One of the implications is that a testator cannot equitably 
be restrained in the distribution he makes of his property, 
in so far as the choice of recipients is concerned, or the 
amounts assigned to such recipients. If other men in their 
corporate capacity direct that he shall give to A or shall 
not give to B, or shall give to A, B, and others in such and 
such proportions, then other men make themselves part- 
owners of his property : it shall be turned to purposes 
which they will and not to purposes which he wills. And 
to the extent that his power of bequest is thus interfered 
with, property is taken out of his possession while he 
still lives. 

One of the illustrations of the general truth that the 
civilized man has greater freedom of action than the 
partially -civilized man and the uncivilized man, is the 
fact that the right of bequest, scarcely recognized at 
first, has gradually established itself. Before law exists, 
custom, no less peremptory than law, habitually prescribes 
the modes in which property descends. Among sundry 
Polynesians there is primogeniture, and in Sumatra equal 
division among male children. Hottentots and Damaras 
enforce primogeniture in the male line. On the Gold 
Coast, and in some parts of Congo, relatives in the 
female line inherit. Among the Eglias and neighbouring 
peoples, inheritance by the eldest son includes even his 
father's wives, except his mother. In Timbuctoo, the 
prescribed share of a son is double that of a daughter; 
while sometimes among the Ashantis, and habitually 
among the Fulahs, slaves and adopted children succeed : 
some freedom of bequest being thus possessed by these 
higher of the African races. In Asia, the custom of 



THE RIGHTS OP GIFT AND BEQUEST. 121 

Arabs, Todas, Ghonds, and Bodo and Dhimals, requires 
equal division among the male sons. Sister's sons inherit 
the property of a Kasia ; and only accounts of Karens and 
Mishmis mention a father's ability to dispose of his goods 
as he pleases. Similarly was it with the European races 
in early times. Tacitus writes of the primitive Germans 
that " there are no wills ; " Belloguet concludes that 
" Celtic, like German, customs did not admit a right of 
testament ; " and Kcsnigswater says the like of the Saxons 
and Frisians. The original ownership by the village- 
community passed into family-ownership; so that estates 
could not be alienated from children and other relatives. 
In the Merovingian period personalty could be bequeathed, 
but land only if heirs were lacking. Feudalism, inheriting 
these usages, and requiring that each fief should furnish 
its contingent of men-at-arms properly led, regulated the 
mode of descent of land for this purpose; and, in so far, 
negatived the power of bequest. But the growth of in- 
dustrialism, with its freer forms of social relations, has 
brought increased freedom in the disposition of property ; 
and it has brought this in the greatest degree where 
industrialism has most subordinated militancy, namely, 
among ourselves and the Americans. ■ In France, the 
State decides for the testator how part of his property 
shall be distributed among relatives ; and there exists a 
like limitation of his power in other European States. 
But here, freedom of bequest, in respect of personalty, 
is uninterfered with in so far as distribution goes; and 
though, in respect of such realty as is entailed, the power 
of the proprietor is suspended, and becomes operative only 
under certain conditions, yet there is a manifest tendency 
towards removal of this last restriction. 

§ 65. But while, along with the right of gift, the right 
of bequest is implied by the right of property, — while a 
man's ownership may justly be held to include the right 



122 JUSTICE. 

of leaving defined portions of what he owns to specified 
recipients; it does not follow that he is ethically warranted 
in directing what shall be done by the recipients with the 
property he leaves to them. 

Presented in its naked form, the proposition that a man 
can own a thing when he is dead, is absurd ; and yet, in a 
disguised form, ownership after death has been largely in 
past times, and is to a considerable extent at present, 
recognized and enforced by the carrying out of a testator's 
orders respecting the uses to be made of his bequests. 
For any prescribing of such uses, implying continuance of 
some power over the property, implies continuance of some 
possession ; and wholly or partially takes away the posses- 
sion from those to whom the property is bequeathed. Few 
will deny that the Earth's surface, and the things on it, 
should be owned in full by the generation at any time 
existing. Hence the right of property may not equitably 
be so interpreted as to allow any generation to tell sub- 
sequent generations for what purposes, or under what 
restrictions, they are to use the Earth's surface or the 
things on it. 

This conclusion is no less forced on us if we refer back to 
the derivation of the right of property from the laws of life. 
For if, as we have seen, a pre-requisite to maintenance of 
the species is that each individual shall receive the benefits 
and suffer the evils of his own conduct — if the pre-requisite 
to continued sustentation is that when effort has been 
expended the product of that effort shall not be intercepted 
or taken away — if the right of property has this biological 
requirement for its ultimate justification; then, the 
implication is that, being a condition to the maintenance of 
life, it ceases with the cessation of life. 

Strictly interpreted, therefore, the right of gift, when it 
takes the form of bequest, extends only to the distribution of 
the bequeathed property, and does not include specification 
of the uses to which it shall be put. 



THE EIGHTS OF GIFT AND BEQUEST. 123 

§66. Here, however, we come upon certain qualifica- 
tions arising from the fact that among human beings there 
are other relations than those between adult citizens — the 
relations of parents to offspring. "We have seen that the 
ethics of the State and the ethics of the Family are opposed 
in nature; and hence when, as happens at the death of a 
parent, the ethics of both enter into the question, a 
compromise has to be effected. 

It may, indeed, be held that were human life normal, 
instead of having the abnormalities due to its transitional 
state, difficulties would rarely arise; since the deaths of 
parents would not occur until children were adults, and 
property bequeathed to them might pass at once into their 
possession without restrictions. But as, under existing 
conditions, the deaths of parents often occur at times when 
children are unable to take care of themselves and their 
property, it results that, to fulfil parental obligations as far 
as possible, parents must so specify the uses of bequeathed 
property as to further their children's welfare during 
immaturity. Inasmuch as the products acquired by efforts 
are possessed, not for self-sustentation only, but for sus- 
tentation of offspring, it follows that when self-sustentation 
is prematurely ended, the acquired products may rightly 
be bequeathed for the sustentation of offspring; and the 
use of them for this purpose, being no longer possible to the 
parent, may be given in trust to some other person : such 
continued possession by the parent as is thus implied, 
lapsing when the offspring become adult. 

This bequest of property in trust for the benefit of 
children, necessitates a fixing of the age at which they may 
be judged capable of taking care of themselves and their 
possessions ; and in fixing this age ethical considerations 
give us no help. All we may infer from them is that such 
continued ownership of property by a dead parent as is 
implied by prescribing the uses to be made of it for tho 
benefit of children, may rightly last up to that age at 



124 JUSTICE. 

which ordinary experiences lead men to think that the 
immaturity of children has ended — an age necessarily 
indefinite; since it varies with each type of mankind, is 
differently estimated by peoples of the same type, and is 
unlike in different individuals. 

§ 67. A more perplexing question here arises. Derived 
though the ultimate law, alike of sub-human justice and 
human justice, is from the necessary conditions to self- 
preservation and the preservation of the species ; and 
derived from this as are both the right of possession during 
life and that right of qualified possession after death 
implied by bequests in trust for immature children ; a kin- 
dred derivation of any further right to prescribe the uses 
of bequeathed property appears impracticable. Nothing 
beyond a quite empirical compromise seems possible. On 
the one hand, ownership of property after death is un- 
warranted by the ultimate principle of justice save in the 
case just named. On the other hand, when property has 
been acquired, perhaps by unusual industry, perhaps by 
great skill in business (implying benefit to others as well 
as to self) or perhaps by an invention permanently valuable 
to mankind, it is hard that the owner should be wholly 
deprived of power to direct the uses to be made of it after 
his death : especially where he has no children and must 
leave it unbequeathed or bequeath it to strangers. 

Evidently a distinction is to be made. One who holds 
land subject to that supreme ownership of the community 
which both ethics and law assert, cannot rightly have such 
power of willing the application of it as involves permanent 
alienation from the community. In respect of what is 
classed as personalty, however, the case is different. Pro- 
perty which is the product of efforts, and which has resulted 
either from the expenditure of such efforts upon raw 
materials for which equivalents (representing so much 
labour) have been given or from the savings out of wages 



THE RIGHTS OF GIFT AND BEQUEST. 125 

or salaries, and is thus possessed in virtue of that relation 
between actions and their consequences on the maintenance 
of which justice insists, stands in another category. Such 
property being a portion of that which society has paid the 
individual for work done, but which he has not consumed, 
he may reasonably contend that in giving it back to society, 
either as represented by certain of its members or by some 
incorporated body, he should be allowed to specify the 
conditions under which the bequest is to be accepted. In 
this case, it cannot be said that anything is alienated which 
belongs to others. Contrariwise, others receive that to 
which they have no claim ; and are benefited, even when they 
use it for prescribed purposes : refusal of it being the alter- 
native if the purposes are not regarded as beneficial. Still, 
as bequeathed personal property is habitually invested, 
power to prescribe its uses without any limit of time, may 
result in its being permanently turned to ends which, good 
though they were when it was bequeathed, have been ren- 
dered otherwise by social changes. Hence an empirical 
compromise appears needful. We seem called upon to say 
that a testator should have some power of directing the 
application of property not bequeathed to children, but that 
his power should be limited ; and that the limits must be 
settled by experience of results. 

§ 68. Since social self-preservation takes precedence of 
individual self-preservation, it follows that there exists a 
warrant for such qualification of the right of bequest as 
arises from the need for meeting the cost of protecting the 
society against other societies, and protecting individuals 
against other individuals. Granting that under existing 
conditions it is relatively right that the community, through 
its governmental agency, should appropriate the property 
of each citizen to the extent requisite for maintaining 
national defence and social order ; it becomes a question of 
policy in what way the needful appropriations shall be 



126 JUSTICE. 

made ; and if it appears convenient that part of the required 
revenues should be raised by per-centages on bequeathed 
property, no ethical objection can be urged. 

Subject to this qualification, we see that the foregoing 
deductions from the law of equal freedom are justified by 
their correspondence with legislative provisions ; and that 
there has been a progressive increase in the correspondence 
between the ethical and the legal dicta. The right of gift, 
not everywhere admitted in old times, has been in later 
times tacitly recognized by Acts which limit it to property 
that is equitably a man's own. The right of bequest, 
scarcely existing in early social stages, has been established 
more and more in proportion as the freedom of the indi- 
vidual has become greater; and has reached the fullest 
legislative assertion under our own free institutions and the 
American ones derived from them. Directions for the uses 
of property left to immature children, which we have seen 
to be ethically warranted, have become authorized by law. 
And such restrictions on the power of ordering what shall 
be done with property otherwise bequeathed, as are em- 
bodied in laws of mortmain and the like, harmonize with 
ethical inferences. 



CHAPTER XV. 

THE RIGHTS OF FREE EXCHANGE AND FREE CONTRACT. 

§ 69. What was said at the outset of the last chapter 
concerning the right of gift, may be said here, with change 
of terms, concerning the right of exchange ; for exchange 
may not unfitly be regarded as a mutual cancelling of gifts. 
Probably most readers will think this a fanciful interpreta- 
tion of it ; but, contrariwise, it is an interpretation forced 
on us by inspection of the facts. For whereas barter is 
not universally understood among the lowest tribes, the 
making of presents is universally understood ; and where 
the making of presents becomes habitual, there grows up 
the conception that equivalent presents should be made in 
return. Numerous books of travel exemplify this con- 
ception. Evidently, then, from the exchange of equivalent 
presents, there may readily grow up a constant practice of 
exchange from which the idea of presents has dropped out. 

But without making the right of exchange a corollary 
from the right of gift, it is clear that the one like the other 
is included in the right of property ; since ownership of a 
thing is incomplete if it may not be transferred in place of 
another thing received. 

Further, the right of exchange may be asserted as a 
direct deduction from the law of equal freedom. For of 
the two who voluntarily make an exchange, neither assumes 



128 JUSTICE. 

greater liberty of action than the other, and fellow men are 
uninterfered with — remain possessed of just as much liberty 
of action as before. Though completion of the exchange 
may shut out sundry of them from advantageous trans- 
actions, yet as their abilities to enter into such transactions 
depended wholly on the assent of another man, they 
cannot be included in their normal spheres of action. 
These continue what they would have been had the two 
persons who have bargained never existed. 

Obvious as is the right of exchange, recognition of it in 
law has arisen but slowly ; and, in most parts of the world, 
is still far from complete. Among the Polynesian races, 
exchange is variously interfered with by the chiefs: here, 
foreign trade being monopolized by them; there, prices 
fixed by them ; and in other places the length of a day's 
work. Similarly in Africa. The right of pre-emption in 
trade is possessed by chiefs among Bechuanas and Inland 
Negroes ; and there is no business without royal assent. 
In Ashanti only the king and great men can trade ; and in 
Shoa certain choice goods can be bought only by the king. 
The Congo people, Dahomans, and Fulahs, have com- 
mercial chiefs who regulate buying and selling. Kindred 
limitations existed among the Hebrews and Phoenicians, as 
also among the Ancient Mexicans and Central Americans. 
At the present time the men of some South American tribes, 
as the Patagonians and Mundrucus, have to obtain authority 
from chiefs before they can trade. Like facts, presented by 
the European nations, down from the time when Diocletian 
fixed prices and wages, need not be detailed. All it concerns 
us to note is that interferences with exchange have diminished 
as civilization has advanced. They have decreased, and in 
some cases have disappeared from the transactions between 
members of the same society; and have partially disappeared 
later from the transactions between members of different 
societies. Moreover with this, as with other rights, the 
interferences have become smallest where the development 



THE RIGHTS OF FREE EXCHANGE AND FREE CONTRACT. 129 

of the industrial type with its concomitant free institutions, 
has become greatest, namely, among ourselves. 

It is worthy of note, however, that the changes which 
established almost entire freedom of trade in England, were 
chiefly urged on grounds of policy and not on grounds of 
equity. Throughout the Anti-Corn-Law agitation little was 
said about the " right " of free exchange ; and at the 
present time such reprobation as we hear of protectionists, 
at home and abroad, is vented exclusively against the folly 
of their policy and not against its inequity. JSTor need we 
feel any surprise at this if we remember that even still the 
majority of men do not admit that there should be freedom 
of exchange in respect of work and wages. Blinded by 
what appear to be their interests, artizans and others 
tacitly deny the rights of employer and employed to decide 
how much money shall be given for so much labour. In 
this instance the law is in advance of the average opinion : 
it insists that each citizen shall be at liberty to make what- 
ever bargains he pleases for his services ; while the great 
mass of citizens insist that each shall not be at liberty 
to do this. 

§ 70. Of course with the right of free exchange goes 
the right of free contract : a postponement, now under- 
stood now specified, in the completion of an exchange, 
serving to turn the one into the other. 

It is needless to do more than name contracts for services 
on certain terms; contracts for the uses of houses and lands ; 
contracts for the completion of specified works ; contracts 
for the loan of capital. These are samples of contracts 
which men voluntarily enter into without aggressing on 
any others — contracts, therefore, which they have a right 
to make. 

In earlier times interferences with the right of exchange 
were of course accompanied by interferences with the right 
of contract. The multitudinous regulations of wages and 



130 JUSTICE. 

prices, which century after century encumbered the statute 
books of civilized peoples, were examples. Decreasing 
with the decrease of coercive rule, these have, in our days, 
mostly disappeared. One such gradual change may be 
instanced as typifying all others — that which usury laws 
furnish. In sundry cases where but small progress towards 
free institutions had been made, the taking of interest for 
money lent was forbidden altogether; as among the 
Hebrews, as among ourselves in the remote past, and as 
among the French at the time of the greatest monarchical 
power. Then, as a qualification, we have the fixing of 
maximum rates ; as in early ages by Cicero for his Roman 
province; as in England by Henry VIII at 10 per cent., 
by James I at 8 per cent., by Charles II at 6 per cent., by 
Anne at 5 per cent. ; and as in France by Louis XV at 
4 per cent. Finally we have removal of all restrictions, 
and the leaving of lenders and borrowers to make their 
own bargains. 

While we observe that law has in this case gradually 
come into correspondence with equity, we may also fitly 
observe one exceptional case in which the two agree in 
forbidding a contract. I refer to the moral interdict and 
the legal interdict against a man's sale of himself into 
slavery. If we go back to the biological origin of justice, 
as being the maintenance of that relation between efforts 
and the products of efforts which is needful for the con- 
tinuance of life, we see that this relation is suspended by 
bondage; and that, therefore, the man who agrees to 
enslave himself on condition of receiving some immediate 
benefit, traverses that ultimate principle from which social 
morality grows. Or if we contemplate the case from an 
immediately ethical point of view, it becomes manifest that 
since a contract, as framed in conformity with the law of 
equal freedom, implies that the contracting parties shall 
severally give what are approximately equivalents, there 
can be no contract, properly so called, in which the terms 



THE RIGHTS OP FREE EXCHANGE AND FREE CONTRACT. 131 

are incommensurable; as they are when, for some present 
enhancement of his life, a man bargains away the rest of 
his life. So that when, instead of recognizing the sale of 
self as valid, law eventually interdicted it, the exception 
it thus made to the right of contract was an exception 
which equity also makes. Here, too, law harmonized itself 
with ethics. 

§ 71. These rights of exchange and contract have, of 
course, in common with other rights, to be asserted subject 
to the restrictions which social self-preservation in presence 
of external enemies necessitate. Where there is good 
evidence that freedom of exchange would endanger national 
defence, it may rightly be hindered. 

This is a limitation of the right which, in stages cha- 
racterized by permanent militancy, is obviously needful. 
Societies in chronic antagonism with other societies 
must be self-sufficing in their industrial arrangements. 
During the early feudal period in France, " on rural estates 
the most diverse trades were often exercised simultaneously;" 
and "the castles made almost all the articles used in them." 
The difficulties of communication, the risk of loss of goods 
in transit, and the dangers arising from perpetual feuds, 
made it requisite that the essential commodities should be 
produced at home. That which held of these small social 
groups has held of larger social groups ; and international 
freedom of exchange has therefore been greatly restricted. 
The outcry against being " dependent on foreigners," 
which was common during the An ti- Corn-law agitation, 
was not without some justification ; since it is only during 
well-assured peace that a nation may, without risk, buy 
a large part of its food abroad, instead of growing it. 

Beyond this qualification of the rights of exchange and 
contract, there remains no other having an ethical warrant. 
Interference with the liberty to buy and sell for other 
reasons than that just recognized as valid, is a trespass, by 



132 JUSTICE. 

whatever agency effected. Those who have been allowed 
to call themselves " protectionists " should be called aggres- 
sionists; since forbidding A to buy of B, and forcing him 
to buy of (usually on worse terms), is clearly a trespass 
on that right of free exchange which we have seen to be 
a corollary from the law of equal freedom. 

The chief fact to be here noted, however, is that among 
ourselves, if not among other peoples, the ethical deduction, 
after being justified inductively, has gained a recognition in 
law j if not on moral grounds, yet on grounds of policy. 



CHAPTER XVI. 

THE EIGHT TO FKEE INDUSTKY. 

§ 72. Though, under one of its aspects, industrial 
freedom is implied by the rights to free motion and loco- 
motion; and though, under another of its aspects, it is 
implied by the rights to free exchange and free contract ; 
yet it has a further aspect, not clearly included in these, 
which must be specifically stated. Though demonstration 
of it is scarcely called for, yet it is needful to indicate it for 
the purpose of showing how little it was once recognized 
and how fully it is recognized now. 

By the right to free industry is here meant the right of 
each man to carry on his occupation, whatever it may be, 
after whatever manner he prefers or thinks best, so long as 
he does not trespass against his neighbours : taking the 
benefits or the evils of his way, as the case may be. Self- 
evident as this right now seems, it seemed by no means 
self-evident to people in past times. Naturally, indeed, it 
could not well be self-evident while more obvious rights 
were unrecognized. 

Just noting that, in the far past, industry was under 
regulations having a religious authority, as among the 
Hebrews, who, in Deuteronomy XXII, 8 &c, were directed 
concerning methods of building and agriculture, it will 
suffice to observe how great and persistent were the 
restraints on industrial liberty among European peoples 



134 JUSTICE. 

during the supremacy of that, militant organization which 
in all ways subordinates individual wills. In Old-English 
days, the lord of the manor in Court-leet inspected indus- 
trial products; and, after the establishment of kingship, 
there came directions for cropping of lands, times of shear- 
ing, mode of ploughing. After the Conquest regulations 
for dyeing were enacted. From Edward III onwards 
to the time of James I, official searchers had to see that 
various wares were properly made. Certain traders were 
told how many assistants they should have ; the growing of 
particular plants was made compulsory; tanners had to 
keep their hides in the pits for specified periods; and 
there were officers for the assize of bread and ale. With 
the development of institutions characterizing the industrial 
type, these restrictions on industrial freedom diminished; 
and, at the time George III began to reign, five-sixths of 
them had disappeared. Increasing though they did during 
the war-period brought on by the French revolution, they 
again diminished subsequently ; until there had been 
abolished nearly all State-interferences with modes of pro- 
duction. Significantly enough, however, the recent revival 
of militancy here, consequent on the immense re-develop- 
ment of it on the Continent (set going, for the second time, 
by that greatest of all modern curses the Bonaparte family) 
has been accompanied by a reaction towards industrial 
regulations ; so that during the last 30 years there have 
been numerous acts saying how businesses shall be carried 
on : ranging from the interdict on taking meals in match 
factories except in certain parts, to directions for the build- 
ing and cleaning of artizans' dwellings — from orders for the 
painting of bakehouses to acts punishing farmers if they 
employ uneducated children. 

Meanwhile it is to be observed that in France, where the 
militant activities entailed by surroundings have developed 
more highly the militant type of structure, industrial 
regulations have been more elaborate and more rigorous : 



THE EIGHT TO FREE INDUSTRY. 135 

having been carried, during the latter days of the monarchy, 
to a scarcely credible extent. " Swarms of public function- 
aries " enforced rules continually complicated by new ones 
to remedy the insufficiency of the old : directing, for 
example, "the lengths pieces of cloth are to be woven, 
the pattern to be chosen, the method to be followed, and 
the defects to be avoided." Even after the Revolution, 
when greater industrial freedom was temporarily achieved, 
interferences again multiplied ; so that in 1806, according 
to Levasseur, public administrations fixed the length of the 
day's labour, the hours of meals, and the beginning and end 
of the day at the various seasons. Indeed, it is instructive 
to observe how, in France, where the idea of equality has 
always subordinated the idea of liberty ; and where, under 
the guise of a free form of government, citizens have all 
along submitted without protest to a bureaucracy which 
has been as despotic under the republican form of govern- 
ment as under the monarchical ; and where reversions to the 
completely militant type of structure have more than once 
occurred, and have more than once almost occurred; the 
industrial freedom of the individual, in common with other 
freedoms, has never been established so fully as here; 
where la gloire has not been so predominant an aim and 
militant organization has never been so pronounced. 

But details apart, a general survey of the facts proves 
that during the advance from those early stages in which 
small respect was paid to life, liberty, and property, to those 
later stages in which these are held sacred, there has been 
an advance from a regime under which modes of pro- 
duction were authoritatively prescribed, to a regime under 
which they are left to the will of the producer; and in 
places where legislation most recognizes individual freedom 
in other respects, it most recognizes individual freedom 
in this respect. 



CHAPTER XVII. 

THE EIGHTS OF FEEE BELIEF AND WOESHIP. 

§ 73. If we interpret the meanings of words literally, 
to assert freedom of belief as a right is absurd ; since by no 
external power can this be taken away. Indeed an asser- 
tion of it involves a double absurdity; for while belief 
cannot really be destroyed or changed by coercion from 
without, it cannot really be destroyed or changed by 
coercion from within. It is determined by causes which lie 
beyond external control, and in large measure beyond 
internal control. What is meant is, of course, the right 
freely to profess belief. 

That this is a corollary from the law of equal freedom 
scarcely needs saying. The profession of a belief by any 
one, does not of itself interfere with the professions of 
other beliefs by others ; and others, if they impose on any 
one their professions of belief, manifestly assume more 
liberty of action than he assumes. 

In respect- of those miscellaneous beliefs which do not 
concern in any obvious way the maintenance of established 
institutions, freedom of belief is not called in question. 
Ignoring exceptions presented by some uncivilized societies, 
we may say that it is only those beliefs the profession of 
which seems at variance with the existing social order, 
which are interdicted. To be known as one who holds that 
the political system, or the social organization, is not what it 



THE EIGHTS OP FREE BELIEF AND WORSHIP. 187 

ought to be, entails penalties in times and places where the 
militant type of organization is unqualified. But, naturally, 
where fundamental rights are habitually disregarded, no 
regard for a right less conspicuously important is to be 
expected. The fact that the right of political dissent is 
denied where rights in general are denied, affords no reason 
for doubting that it is a direct deduction from the law of 
equal freedom. 

The right to profess beliefs of the religious class, has for its 
concomitant the right to manifest such beliefs in acts of wor- 
ship. For these, too, may be performed without diminishing 
the like rights of fellow men, and without otherwise 
trespassing against them in the carrying on of their lives. 
So long as they do not inflict nuisances on neighbouring 
people, as does the untimely and persistent jangling of 
bells in some Catholic countries, or as does the uproar of 
Salvation Army processions in our own (permitted with 
contemptible weakness by our authorities) they cannot be 
equitably interfered with. Those who profess other 
religious beliefs, in common with those who profess no 
religious beliefs, remain as free as before to worship in 
their own ways or not to worship at all. 

The enunciation of these rights, needful for the 
symmetry of the argument, is in our day and country 
almost superfluous. But England is not the world ; and 
even in England there still survive certain practical denials 
of these rights. 

§ 74. The savage, far from possessing that freedom 
which sentimental speculators about society used to 
imagine, has his beliefs dictated by custom, in common 
with those usages which peremptorily regulate his life. 
When we read that in Guinea, a man who does not fulfil 
the prophecy of the fetish by getting* well, is strangled 
because he has made the fetish lie, we may readily under- 
stand that the expression of scepticism is practically 
7 



138 JUSTICE. 

unknown. The Fijians, who, being worshippers of cannibal 
gods, expressed horror at the Samoans because they had 
no worship like their own, and whose feeling towards Jack- 
son for disregarding one of their religious interdicts was 
shown by angrily calling him "the white infidel," are not 
likely to have tolerated any religious scepticism among 
their own common people, any more than they are likely to 
have tolerated any political scepticism respecting the divine 
authority of their chiefs : a conclusion we are compelled to 
draw on reading, in Williams, that a Fijian who had been 
in America endangered his life by saying that America was 
larger than Fiji. 

Turning to ancient civilizations, we meet with various 
denials of the right of free belief. There is Plato's pre- 
scription of punishments for those who dissented from the 
Greek religion; there is the death of Socrates for attacking 
the current views concerning the gods; and there is the 
prosecution of Anaxagoras for implying that the Sun was 
not the chariot of Apollo. Passing to the time when the 
profession of the Christian belief was penal, and then to the 
subsequent time when the profession of any other belief 
was penal, the only thing we have to note in connexion 
with the doings of inquisitors and the martyrdoms, now of 
Protestants by Catholics and then of Catholics by Protes- 
tants, is that the thing insisted on was external conformity. 
It sufficed if there was nominal acceptance of the prescribed 
belief, without any evidence of real acceptance. Leaving the 
period of these earlier religious persecutions, during which 
there was a tacit denial of the right of free belief, it 
suffices to note that since the Toleration Act of 1688, which, 
while insisting on acknowledgment of certain fundamental 
dogmas, remitted the penalties on dissent from others, 
there have been successive relaxations. The disqualifications 
of dissenters for public posts were removed; by and by 
those of Catholics and eventually those of Jews ; and still 
more recently the substitution of affirmation for oath has 



THE EIGHTS OF FEEE BELIEF AND WOESHIP. 139 

made it no longer legally imperative to assert or imply 
belief in a God, before being permitted to fulfil certain civil 
functions. Practically, every one is now free to entertain 
any creed or no creed, without incurring legal penalty, and 
with little or no social penalty. 

By a kindred series of changes there has been gradually 
established freedom of political belief. Punishment or 
ill-usage for rejecting such a political dogma as the divine 
right of kings, or for calling in question the right of some 
particular man to reign, have ceased. The upholders of 
despotism and the avowed anarchists are equally at liberty 
to think as they please. 

§ 75. Is freedom of belief, or rather the right freely to 
profess belief, subject to no qualification ? Or from the 
postulate that the needs for social self-preservation must 
override the claims of individuals, are we to infer that under 
certain conditions the right may properly be limited ? 

The only cases in which limitation can be urged with 
manifest force, are those in which the beliefs openly enter- 
tained are such as tend directly to diminish the power 
of the society to defend itself against hostile societies. 
Effectual use of the combined forces of the community, 
presupposes subordination to the government and to the 
agencies appointed for carrying on war ; and it may ration- 
ally be held that the open avowal of convictions which, if 
general, would paralyse the executive agency, ought not to 
be allowed. And here, indeed, we see once more how that 
militant regime which in various other ways suppresses or 
suspends the rights of individuals, interferes even with the 
right of free belief. 

Only, indeed, as we pass gradually from that system of 
status which chronic hostilities produce, to that system of 
contract which replaces it as fast as industrial life becomes 
predominant, do.es the assertion of rights in general become 
more and more practicable and appropriate; and only in 



140 JUSTICE. 

the course of this change does the change from the alleged 
duty of accepting beliefs prescribed by authority, to the 
asserted right of individually choosing beliefs, naturally 
go on. 

Subject to this interpretation, we see that the right of 
free belief has had a history parallel to the histories of 
other rights. This corollary from the law of equal freedom, 
at first ignored and then gradually more and more recog- 
nized, has finally come to be fully established in law. 



CHAPTER XVIII. 

THE EIGHTS OF FKEE SPEECH AND PUBLICATION. 

§ 76. The subject matter of this chapter is scarcely 
separable from that of the last. As belief, considered in 
itself, does not admit of being controlled by external power 
— as it is only the profession of belief which can be taken 
cognizance of by authority and permitted or prevented, it 
follows that the assertion of the right to freedom of belief 
implies the right to freedom of speech. Further, it implies 
the right to use speech for the propagation of belief; seeing 
that each of the propositions constituting an argument or 
arguments, used to support or enforce a belief, being 
itself a belief, the right to express it is included with the 
right to express the belief to be justified. 

Of course the one right like the other is an immediate 
corollary from the law of equal freedom. By using speech, 
either for the expression of a belief or for the maintenance 
of a belief, no one prevents any other person from doing 
the like : unless, indeed, by vociferation or persistence he 
prevents another from being heard, in which case he is 
habitually recognized as unfair, that is, as breaking the law 
of equal freedom. 

Evidently with change of terms, the same things may be 
said concerning the right of publication — "the liberty of 
unlicensed printing." In respect of their ethical relations, 
there exists no essential difference between the act of 



142 JUSTICE. 

speaking and the act of symbolizing speech by writing, or 
the act of multiplying copies of that which has been written. 
One qualification, implied by preceding chapters, has to 
be named. Freedom of speech, spoken, written, or printed, 
does not include freedom to use speech for the utterance of 
calumny or the propagation of it; nor does it include 
freedom to use speech for prompting the commission of 
injuries to others. Both these employments of it are 
obviously excluded by those limits to individual liberty 
which have been set forth. 

§ 77. Though in our time and country defence of these 
rights seems needless, it may be well to deal with such 
arguments against them as were urged among ourselves 
in comparatively recent times and are still urged in 
other countries. 

It is said that a government ought to guarantee its 
subjects "security and a sense of security;" whence it is 
inferred that magistrates ought to keep ears open to the 
declamations of popular orators, and stop such as are 
calculated to create alarm. This inference, however, is 
met by the difficulty that since every considerable change, 
political or religious, is, when first urged, dreaded by the 
majority, and thus diminishes their sense of security, the 
advocacy of it should be prevented. There were multitudes 
of people who suffered chronic alarm during the Reform 
Bill agitation ; and had the prevention of that alarm been 
imperative, the implication is that the agitation ought to 
have been suppressed. So, too, great numbers who were 
moved by the terrible forecasts of The Standard and the 
melancholy wailings of The Herald, would fain have put 
down the free-trade propaganda ; and had it been requisite 
to maintain their sense of security, they should have had 
their way. And similarly with removal of Catholic dis- 
abilities. Prophecies were rife of the return of papal 
persecutions with all their horrors. Hence the speaking 



THE EIGHTS OP FKEE SPEECH AND PUBLICATION. 143 

and writing which brought about the change ought to have 
been forbidden, had the maintenance of a sense of security 
been held imperative. 

Evidently such proposals to limit the right of free speech, 
political or religious, can be defended only by making the 
tacit assumption that whatever political or religious beliefs 
are at the time established, are wholly true ; and since this 
tacit assumption has throughout the past proved to be 
habitually erroneous, regard for experience may reasonably 
prevent us from assuming that the current beliefs are 
wholly true. We must recognize free-speech as still being 
the agency by which error is to be dissipated, and cannot 
without papal assumption interdict it. 

Beyond the need, in past times unquestioned, for 
restraints on the public utterance of political and religious 
beliefs at variance with those established, there is the need, 
still by most people thought unquestionable, for restraining 
utterances which pass the limits of what is thought decency, 
or are calculated to encourage sexual immorality. The 
question is a difficult one — appears, indeed, to admit of no 
satisfactory solution. On the one hand, it seems beyond 
doubt that unlimited license of speech on these matters, 
may have the effect of undermining ideas, sentiments, and 
institutions which are socially beneficial ; for, whatever are 
the defects in the existing domestic regime, we have strong 
reasons for believing that it is in most respects good. If 
this be so, it may be argued that publication of doctrines, 
which tend to discredit this regime, is undoubtedly in- 
jurious and should be prevented. Yet, on the other hand, 
we must remember that in like manner it was, in the past, 
thought absolutely certain that the propagators of heretical 
opinions ought to be punished, lest they should mislead and 
eternally damn those who heard them; and this fact 
suggests that there may be danger in assuming too con- 
fidently that our opinions concerning the relations of the 
sexes are just what they should be. In all times and 



144 JUSTICE. 

places people have been positive that their ideas and 
feelings on these matters, as well as on religious matters, 
have been right; and yet, assuming that we are right, they 
must have been wrong. Though here in England we think 
it clear that the child-marriages in India are vicious, yet 
most Hindus do not think so; and though among ourselves 
the majority do not see anything wrong in mercantile 
marriages, yet there are many who do. In parts of Africa 
not only is polygamy regarded as proper but monogamy is 
condemned, even by women; while in Thibet polyandry is 
not only held right by the inhabitants but is thought by 
travellers to be the best arrangement practicable in their 
poverty-stricken country. In presence of the multitudinous 
differences of opinion found even among civilized peoples, 
it seems scarcely reasonable to take for granted that we 
alone are above criticism in our conceptions and practices ; 
and unless we do this, restraints on free-speech concerning 
the relations of the sexes may possibly be hindrances to 
something better and higher. 

Doubtless there must be evils attendant on free speech 
in this sphere as in the political and religious spheres ; but 
the conclusion above implied is that the evils must be tole- 
rated in consideration of the possible benefits. Further, it 
should be borne in mind that such evils will always be kept 
in check by public opinion. The dread of saying or writing 
that which will bring social ostracism, proves in many cases 
far more effectual than does legal restriction. 

§ 78. Though it is superfluous to point out that, in 
common with other rights, the rights of free speech and 
publication, in early times and most places either denied or 
not overtly recognized, have gradually established them- 
selves ; yet some evidence may fitly be cited with a view to 
emphasizing this truth. 

Various of the facts instanced in the last chapter might 
be instanced afresh here; since suppression of beliefs has, by 



THE RIGHTS OF FREE SPEECH AND PUBLICATION. 145 

implication, been suppression of free speech. That the 
anger of the Jewish priests against Jesus Christ for teaching 
things at variance with their creed led to his crucifixion; 
that Paul, at first a persecutor of Christians, was himself 
presently persecuted for persuading men to be Christians; 
and that by sundry Roman emperors preachers of Chris- 
tianity were martyred; are familiar examples of the denial 
of free speech in early times. So, too, after the Christian 
creed became established, the punishment of some who 
taught the non-divinity of Christ, of others who publicly 
asserted predestination, and of others who spread the doc- 
trine of two supreme principles of good and evil, as well as 
the persecutions of Huss and Luther, exemplify in ways 
almost equally familiar the denial of the right to utter 
opinions contrary to those which are authorized. And so, 
in our country, has it been from the time when Henry IY. 
enacted severe penalties on teachers of heresy, down to 
the 17th century when the non-conforming clergy were 
punished for teaching any other than the church doctrine 
and Bunyan was imprisoned for open-air preaching — down, 
further, to the last trial for propagating atheism, which is 
within our own recollection. But gradually, during recent 
centuries, the right of free speech on religious matters, 
more and more asserted, has been more and more admitted; 
until now there is no restraint on the public utterance 
of any religious opinion, unless the utterance is gratuitously 
insulting in manner or form. 

By a parallel progress there has been established that 
right of free speech on political questions, which in early 
days was denied. Among the Athenians in Solon's time, 
death was inflicted for opposition to a certain established 
policy ; and among the Romans the utterance of proscribed 
opinions was punished as treason. So, too, in England cen- 
turies ago, political criticism, even of a moderate kind, brought 
severe penalties. Later times have witnessed, now greater 
liberty of speech and now greater control : the noticeable fact 



146 JUSTICE. 

being that during the war-period brought on by the 
French revolution, there was a retrograde movement in 
respect of this right as in respect of other rights. A judge, 
in 1808, declared that "it was not to be permitted to any 
man to make the people dissatisfied with the Government 
under which he lives." But with the commencement of the 
long peace there began a decrease of the restraints on 
political speech, as of other restraints on freedom. Though 
Sir F. Burdett was imprisoned for condemning the inhuman 
acts of the troops, and Leigh Hunt for commenting on 
excessive flogging in the army, since that time there have 
practically disappeared all impediments to the public 
expression of political ideas. So long as he does not 
suggest the commission of crimes, each citizen is free to say 
what he pleases about any or all of our institutions : even to 
the advocacy of a form of government utterly different from 
that which exists, or the condemnation of all government. 

Of course, with increasing recognition of the right of free 
speech there has gone increasing recognition of the right 
of free publication. Plato taught that censors were 
needful to prevent the diffusion of unauthorized doctrines. 
With the growth of ecclesiastical power there came the 
suppression of writings considered heretical. In our own 
country under Queen Elizabeth, books had to be officially 
authorized ; and even the Long Parliament re-enforced that 
system of licensing against which Milton made his cele- 
brated protest. But for these two centuries there has been 
no official censorship, save of public plays. And though many 
arrangements for shackling the press have since been made, 
yet these have gradually fallen into disuse or been repealed. 

§ 79. But in this case, as in cases already noticed, it 
follows from the precedence which the preservation of the 
society has over the claims of the individual, that such 
restraints may rightly be put on free speech and free pub- 
lication as are needful during war to prevent the giving of 



THE RIGHTS OF FEEE SPEECH AND PUBLICATION. 147 

advantage to the enemy. If, as we have seen, there is 
ethical justification for subordinating the more important 
rights of the citizen to the extent requisite for successfully 
carrying on national defence, it of course follows that these 
less important rights may also be subordinated. 

And here, indeed, we see again how direct is the con- 
nexion between international hostilities and the repression 
of individual freedom. For it is manifest that throughout 
civilization the repression of freedom of speech and freedom 
of publication, has been rigorous in proportion as militancy 
has been predominant; and that at the present time, in such 
contrasts as that between Russia and England, we still 
observe the relation. 

After recognizing the justifiable limitations of these 
rights, that which it concerns us to note is that they, in 
common with the others severally deduced from the law of 
equal freedom, have come to be recognized in law as fast as 
society has assumed a higher form. 



CHAPTER XIX. 
A RETROSPECT WITH AN ADDITION. 

§ 80. Where men's natures and their institutions are 
incongruous, there exists a force tending to produce 
change. Either the institutions will remould the nature 
or the nature will remould the institutions, or partly the 
one and partly the other ; and eventually a more stable 
state will establish itself. 

In our own case the action and reaction between our 
social arrangements and our characters, has produced a 
curious result. Compromise being an essential trait of 
the one has become agreeable to the other; so that it is 
not only tolerated but preferred. There has grown up a 
distrust of definite conclusions, and a positive aversion to 
system. Naturally, statesmen and citizens who, on the one 
hand, unite in declaring the sovereignty of the people, and 
who, on the other hand, dutifully write and complacently 
read royal speeches which address Lords and Commons as 
servants, and speak of the people as " my subjects," must be 
impatient of any demand for consistency in their political 
ideas. If, while they assert the right of private judgment 
in religious matters, they tacitly authorize parliament to 
maintain a creed for them, they must be restive when 
asked how they reconcile their theory with their practice. 
Hence, in presence of the many instances in which they 
have to accept contradictory doctrines, they become averse 



A RETROSPECT WITH AN ADDITION. 149 

to exact thinking, resent all attempts to tie them down to 
precise propositions, and shrink from an abstract principle 
with as much alarm as a servant girl shrinks from some- 
thing she takes for a ghost. 

An ingrained way of thinking and feeling thus generated 
by social conditions, is not to be changed by any amount of 
reasoning. Beliefs at variance with it cannot gain much 
acceptance. Readers in whom the separate arguments 
contained in foregoing chapters have failed to produce 
changes of opinions, will not have their opinions changed 
by bringing together these arguments and showing that 
they converge to the same conclusion. Still, before pro- 
ceeding, it will be as well to show how strong are the 
united proofs of the propositions from which inferences 
are presently to be drawn. 

§ 81. We have no ethics of nebular condensation, or of 
sidereal movement, or of planetary evolution : the concep- 
tion is not relevant to inorganic actions. Nor, when we 
turn to organized things, do we find that it has any rela- 
tion to the phenomena of plant-life : though we ascribe to 
plants superiorities and inferiorities, leading to successes 
and failures in the struggle for existence, we do not 
associate with them praise and blame. It is only with 
the rise of sentiency in the animal world, that the subject 
matter of ethics originates. Hence ethics, pre-supposing 
animal life, and gaining an appreciable meaning as animal 
life assumes complex forms, must, in its ultimate nature, be 
expressible in terms of animal life. It is concerned with 
certain traits in the conduct of life, considered as good or 
bad respectively ; and it cannot pass judgments on these 
traits in the conduct of life while ignoring the essential 
phenomena of life. 

In the chapter on ""Animal Ethics " this connexion was 
shown under its concrete form. We saw that, limiting our 
attention to any one species, the continuance of which is 



150 JUSTICE. 

held to be desirable, then, relatively to that species, the 
acts which subserve the maintenance of the individual and 
the preservation of the race, are classed by us as right and 
regarded with a certain approbation ; while we have repro- 
bation for acts having contrary tendencies. In the next 
chapter, treating of " Sub-human Justice," we saw that, 
for achievement of the assumed desirable end, a condition 
precedent is that each individual shall receive or suffer 
the good or evil results of its own nature and consequent 
actions. We saw, also, that throughout the lower animal 
world, where there exists no power by which this condition 
precedent can be traversed, it eventuates in survival of the 
fittest. And we further saw that, since this connexion 
between conduct and consequence is held to be just, it 
follows that throughout the animal kingdom what we call 
justice, is the ethical aspect of this biological law in virtue 
of which life in general has been maintained and has 
evolved into higher forms; and which therefore possesses 
the highest possible authority. 

Along with the establishment of gregarious habits 
there arises a secondary law. When a number of indi- 
viduals live in such proximity that they are severally apt 
to impede one another's actions, and so to prevent one 
another from achieving desired results; then, to avoid 
antagonism and consequent dispersion, their actions have 
to be mutually restrained : each must carry on its actions 
subject to the limitation that it shall not interfere with 
the like actions of others more than its own actions are 
interfered with. And we saw that among various gre- 
garious creatures considerable observance of such restraints 
is displayed. 

Finally, in the chapter on "Human Justice," it was 
shown that among men, the highest gregarious creatures, 
this secondary law, prefigured in a vague way among lower 
gregarious creatures, comes to have more pronounced, more 
definite, and more complex applications. Under the con- 



A RETROSPECT WITH AN ADDITION. 151 

ditions imposed by social life, the primary principle of 
justice, when asserted for each individual, itself originates 
the secondary or limiting principle by asserting it for all 
other individuals; and thus the mutual restrictions which 
simultaneous carrying on of their actions necessitate form 
a necessary element of justice in the associated state. 

§ 82. Adaptation, either by the direct or by the indirect 
process, or by both, holds of cerebral structures as of the 
structures composing the rest of the body ; and mental 
functions, like bodily functions, tend ever to become 
adjusted to the requirements. A feeling which prompts 
the maintenance of freedom of action is shown by all 
creatures, and is marked in creatures of high organization; 
and these last also show some amount of the feeling which 
responds to the requirement that each shall act within the 
limits imposed by the actions of others. 

Along with greater power of " looking before and 
after," there exist in mankind higher manifestations of 
both of these traits — clear where the society has long been 
peaceful and obscured where it has been habitually war- 
like. Where the habits of life have not entailed a chronic 
conflict between the ethics of amity and the ethics of 
enmity, a distinct consciousness of justice is shown; alike 
in respect of personal claims and the correlative claims of 
others. But where men's rights to life, liberty, and pro- 
perty, are constantly subordinated by forcibly organizing 
them into armies for more effectual fighting, and where by 
implication they are accustomed to trample on the rights of 
men who do not inhabit the same territory, the emotions 
and ideas corresponding to the principles of justice, egoistic 
and altruistic, are habitually repressed. 

But subject to this qualification, associated life, which in 
a predominant degree fosters the sympathies, and while it 
gives play to the sentiment of egoistic justice exercises 
also the sentiment of altruistic justice, generates correla- 



152 JUSTICE. 

tive ideas; so that in course of time, along with a moral 
consciousness of the claims of self and others, there comes 
an intellectual perception of them. There finally arise 
intuitions corresponding to those requirements which must 
be fulfilled before social activities can be harmoniously- 
carried on ; and these intuitions receive their most abstract 
expression in the assertion that the liberty of each is limited 
only by the like liberties of all. 

Hence we get a double deductive origin for this funda- 
mental principle. It is primarily deducible from the 
conditions precedent to complete life in the associated 
state; and it is secondarily deducible from those forms 
of consciousness created by the moulding of human nature 
into conformity with these conditions. 

§ 83. The conclusions thus reached by deduction agree 
with the conclusions which induction has led us to. Ac- 
cumulated experiences have prompted men to establish 
laws harmonizing with the various corollaries which follow 
from the principle of equal freedom. 

Though disregarded during war, life during peace has 
acquired sacredness ; and all interferences with physical 
integrity, however trivial, have come to be regarded as 
offences. The slavery which in early stages almost every- 
where existed, has, with the advance of civilization, been 
gradually mitigated; and, in the most advanced societies, 
restraints on motion and locomotion have disappeared. 
Men's equal claims to unimpeded use of light and air, 
originally ignored, are now legally enforced; and, though 
during great predominance of militant activity the owner- 
ship of land by the community lapsed into ownership by 
chiefs and kings, yet now, with the development of in- 
dustrialism, the truth that the private ownership of land is 
subject to the supreme ownership of the community, and 
that therefore each citizen has a latent claim to participate 
in the use of the Earth, has come to be recognized. The 



A RETROSPECT WITH AN ADDITION. 153 

right of property, invaded with small scruple in early times, 
when the rights to life and liberty were little regarded, 
has been better and better maintained as societies have 
advanced ; and while law has with increasing efficiency 
maintained the right to material property, it has more and 
more in modern times recognized and maintained the rights 
to incorporeal property : patent laws, copyright laws, libel 
laws, have been progressively made more effectual. 

Thus while, in uncivilized societies and in early stages 
of civilized societies, the individual is left to defend his own 
life, liberty, and property as best he may, in later stages 
the community, through its government, more and more 
undertakes to defend them for him. Consequently, unless 
it be asserted that primitive disorder was better than is 
the comparative order now maintained, it must be admitted 
that experience of results justifies the assertion of these 
chief rights, and endorses the arguments by which they 
are deduced. 

§ 84. Of kindred nature and significance is an accom- 
panying endorsement. While the community in its corporate 
capacity has gradually assumed the duty of guarding the 
rights of each man from aggressions by other men, it has 
gradually ceased from invading his rights itself as it 
once did. 

Among uncivilized peoples, and among the civilized in 
early times, the right of bequest has been either denied 
(here by custom and there bylaw) or else greatly restricted; 
but with the growth of industrialism and its appropriate 
social forms, restrictions on the right of bequest have 
diminished, and in the most industrially organized nations 
have almost disappeared. In rude societies the ruler 
habitually interferes with the right of free exchange — 
monopolizing, restraining, interdicting; but in advanced 
societies internal exchanges are much less interfered 
with, and in our own society very little interference even 



154 JUSTICE. 

with external exchanges remains. During many centuries 
throughout Europe, the State superintended industry, and 
men were told what processes they must adopt and what 
things they must produce; but now, save by regulations 
for the protection of employes, their rights to manufacture 
what they please and how they please are uninterfered with. 
Originally, creeds and observances were settled by autho- 
rity; but the dictations have slowly diminished, and at 
present, in the most advanced societies, every one may 
believe or not believe, worship or not worship, as he likes. 
And so, too, is it with the rights of free speech and publi- 
cation : originally denied and the assumption of them 
punished, they have gradually acquired legal recognition. 

Simultaneously, governments have also ceased to inter- 
fere with other classes of private actions. Once upon a 
time they prescribed kinds and qualities of food and 
numbers of meals. To those below specified ranks they 
forbad certain colours for dresses, the wearing of furs, the 
use of embroideries and of lace; while the weapons they 
might wear or use were named. Those who might, and 
those who might not, have silver plate were specified; as 
also those who might wear long hair. Nor were amuse- 
ments left uncontrolled. Games of sundry kinds were in 
some cases prohibited, and in other cases exercises were 
prescribed. But in modern times these interferences with 
individual freedom have ceased: men's rights to choose 
their own usages have come to be tacitly admitted. 

Here again, then, unless it be maintained that sumptuary 
aws and the like should be re-enacted, and that freedom of 
bequest, freedom of exchange, freedom of industry, freedom 
of belief, and freedom of speech, might with advantage be 
suppressed ; it must be admitted that the inferences drawn 
from the formula of justice have been progressively justified 
by the discovery that disregard of them is mischievous. 

§ 85. Yet another series of inductive verifications, not 



A RETROSPECT WITH AN ADDITION. 155 

hitherto named, has to be set down — the verifications 
furnished by political economy. 

This teaches that meddlings with commerce by prohibi- 
tions and bounties are detrimental ; and the law of equal 
freedom excludes them as wrong. That speculators should 
be allowed to operate on the food-markets as they see well 
is an inference drawn by political economy; and by the 
fundamental principle of equity they are justified in doing 
this. Penalties upon usury are proved by political econo- 
mists to be injurious ; and by the law of equal freedom they 
are negatived as involving infringements of rights. The 
reasonings of political economists show that machinery is 
beneficial to the people at large, instead of hurtful to them; 
and in unison with their conclusions the law of equal 
freedom forbids attempts to restrict its use. While one of 
the settled conclusions of political economy is that wages 
and prices cannot be artificially regulated with advantage, it 
is also an obvious inference from the law of equal freedom 
that regulation of them is not morally permissible. On 
other questions, such as the hurtfulness of tamperings with 
banking, the futility of endeavours to benefit one occupa- 
tion at the expense of others, political economy reaches 
conclusions which ethics independently deduces. 

What do these various instances unite in showing ? 
Briefly, that not only harmony of co-operation in the social 
state, but also efficiency of co-operation, is best achieved by 
conformity to the law of equal freedom. 

§ 86. Two deductive arguments and three inductive 
arguments thus converge to the same conclusion. By infer- 
ence from the laws of life as carried on under social condi- 
tions, and by inference from the dicta of that moral con- 
sciousness generated by the continuous discipline of social 
life, we are led directly to recognize the law of equal 
freedom as the supreme moral law. And we are indirectly 
led to such recognition of it by generalizing* the experiences 



156 JUSTICE. 

of mankind as registered in progressive legislation; since 
by it we are shown that during civilization there has been 
a gradual increase in the governmental maintenance of the 
rights of individuals, and that simultaneously there has 
been a gradual decrease in the governmental trespasses 
on such rights. And then this agreement is reinforced 
by the proofs that what is theoretically equitable is 
economically expedient. 

I am by no means certain that acceptance of this quint u- 
ply-rooted truth will be rendered any the more likely by 
thus showing that the a posteriori supports of it furnished 
by history are joined with the a priori supports furnished 
by biology and psychology. If there are a priori thinkers 
who obstinately disregard experiences at variance with 
their judgments ; there are also a posteriori thinkers who 
obstinately deny all value to intuitive beliefs. They have 
faith in the cognitions resulting from the accumulated 
experiences of the individual, but no faith in the cognitions 
resulting from the accumulated experiences of the race. 
Here, however, we avoid both kinds of bigotry. The 
agreement of deduction with induction yields the strongest 
proof ; and where, as in this case, we have plurality of both 
deductions and inductions, there is reached as great a 
certainty as can be imagined. 



CHAPTER XX. 

THE EIGHTS OF WOMEN. 

§ 87. When in certain preceding chapters the funda- 
mental principle of justice was discussed, a relevant 
question which might have been raised, I decided to 
postpone, because I thought discussion of it would appro- 
priately introduce the subject-matter of this chapter. 

u Why," it might have been asked, " should not men 
have rights proportionate to their faculties ? Why should 
not the sphere of action of the superior individual be 
greater than that of the inferior individual ? Surely, as a 
big man occupies more space than a little man, so too does 
he need larger supplies of the necessaries of life ; and so, 
too, does he need greater scope for the use of his powers. 
Hence it is unreasonable that the activities of great and 
small, strong and weak, high and low, should be severally 
restrained within limits too narrow for these and too wide 
for those." 

The first reply is that the metaphors which we are 
obliged to use are misleading if interpreted literally. 
Though, as above, and as in previous chapters, men's 
equal liberties are figured as spaces surrounding each, 
which mutually limit another, yet they cannot be truly 
represented in so simple a manner. The inferior man, 
who claims as great a right to bodily integrity as the 



158 JUSTICE. 

superior man, does not by doing this trespass on the 
bodily integrity of the superior man. If he asserts like 
freedom with him to move about and to work, he does not 
thereby prevent him from moving about and working. 
And if he retains as his own whatever his activities have 
gained for him, he in no degree prevents the superior man 
from retaining the produce of his activities, which, by 
implication, are greater in amount. 

The second reply is that denying to inferior faculty a 
sphere of action equal to that which superior faculty has, 
is to add an artificial hardship to a natural hardship. To 
be born with a dwarfed or deformed body, or imperfect 
senses, or a feeble constitution, or a low intelligence, or ill- 
balanced emotions, is in itself a pitiable fate. Could we 
charge Nature with injustice, we might fitly say it is unjust 
that some should have natural endowments so much lower 
than others have, and that they should thus be in large 
measure incapacitated for the battle of life. And if so, 
what shall we say to the proposal that, being already dis- 
advantaged by having smaller powers, they should be 
further disadvantaged by having narrower spheres for the 
exercise of those powers ? Sympathy might contrariwise 
urge that, by way of compensation for inherited dis- 
abilities, they should have extended opportunities. But, 
evidently, the least that can be done is to allow them as 
much freedom as others to make the best of themselves. 

A third reply is that, were it equitable to make men's 
liberties proportionate to their abilities, it would be im- 
practicable; since we have no means by which either 
the one or the other can be measured. In the great 
mass of cases there is no difficulty in carrying out the 
principle of equality. If, (previous aggression being sup- 
posed absent,) A kills B, or knocks him down, or locks 
him up, it is clear that the liberties of action assumed 
by the two are unlike; or if 0, having bought goods 
of D, does not pay the price agreed upon, it is clear 



THE RIGHTS OF WOMEN. 159 

that the contract having been fulfilled on one side and 
not on the other, the degrees of freedom used are not 
the same. But if liberties are to be proportioned to 
abilities, then the implication is that the relative amounts 
of each faculty, bodily and mental, must be ascertained ; 
and the further implication is that the several kinds of 
freedom needed must be meted out. Neither of these 
things can be done ; and therefore, apart from other 
reasons, the regard for practicability would require us 
to treat men's freedoms as equal, irrespective of their 
endowments. 

§ 88. With change of terms these arguments are 
applicable to the relation between the rights of men 
and the rights of women. This is not the place for 
comparing in detail the capacities of men and women. 
It suffices for present purposes to recognize the unques- 
tionable fact that some women are physically stronger 
than some men, and that some women have higher mental 
endowments than some men — higher, indeed, than the 
great majority of men. Hence it results, as above, that 
were liberties to be adjusted to abilities, the adjustment, 
even could we make it, would have to be made irrespective 
of sex. 

The difficulty reappears under another form, if we set 
out with the proposition that just as, disregarding excep- 
tions, the average physical powers of women are less 
than the average physical powers of men, so too are their 
average mental powers. For we could not conform our 
plans to this truth : it would be impossible to ascertain the 
ratio between the two averages ; and it would be impossible 
rightly to proportion the spheres of activity to them. 

But, as above argued, generosity prompting equalization 
would direct that were any difference to be made it ought 
to be that, by way of compensation, smaller faculties should 
have greater facilities. Generosity aside however, justice 



160 JUSTICE. 

demands the women, if they are not artificially advantaged, 
must not, at any rate, be artificially disadvantaged. 

Hence, if men and women are severally regarded as 
independent members of a society, each one of whom has 
to do the best for himself or herself, it results that no 
restraints can equitably be placed upon women in respect 
of the occupations, professions, or other careers which they 
may wish to adopt. They must have like freedom to 
prepare themselves, and like freedom to profit by such 
information and skill as they acquire. 

But more involved questions arise when we take into 
account the relations of women to men in marriage, and 
the relations of women to men in the State. 

§ 89. Of those equal liberties with men which women 
should have before marriage, we must say that in equity 
they retain after marriage all those which are not neces- 
sarily interfered with by the marital relation — the rights to 
physical integrity, the rights to ownership of property 
earned and property given or bequeathed, the rights to free 
belief and free speech, &c. Their claims can properly be 
qualified only in so far as they are traversed by the under- 
stood or expressed terms of the contract voluntarily entered 
into; and as these terms vary in different places and times, 
the resulting qualifications must vary. Here, in default of 
definite measures, we must be content with approximations. 
In respect of property, for instance, it may be reasonably 
held that where the husband is exclusively responsible for 
maintenance of the family, property which would otherwise 
belong to the wife may equitably be assigned to him — the 
use, at least, if not the possession ; since, if not, it becomes 
possible for the wife to use her property or its proceeds for 
her personal benefit only, and refuse to contribute towards 
the expenses of the joint household. Only if she is equally 
responsible with him for family-maintenance, does it seem 
right that she should have equally unqualified ownership of 



THE RIGHTS OF WOMEN. 161 

property. Yet, on the other hand, we cannot say that the 
responsibilities must be entirely reciprocal. For though, 
rights of ownership being supposed equal, it would at first 
sight appear that the one is as much bound as the other to 
maintain the two and their children ; yet this is negatived 
by the existence on the one side of onerous functions which 
do not exist on the other, and which largely incapacitate 
for active life. Nothing more than a compromise, varying 
according to the circumstances, seems here possible. The 
discharge of domestic and maternal duties by the wife may 
ordinarily be held a fair equivalent for the earning of an 
income by the husband. 

Respecting powers of control over one another's actions 
and over the household, the conclusions to be drawn are 
still more indefinite. The relative positions of the two as 
contributors of monies and services have to be taken into 
account, as well as their respective natures ; and these 
factors in the problem are variable. When there arise 
conflicting wills of which both cannot be fulfilled, but one 
of which must issue in action, the law of equal freedom 
cannot, in each particular case, be conformed to ; but can 
be conformed to only in the average of cases. Whether 
it should be conformed to in the average of cases must 
depend on circumstances. We may, however, say that 
since, speaking generally, man is more judicially-minded 
than woman, the balance of authority should incline to the 
side of the husband ; especially as he usually provides the 
means which make possible the fulfilment of the will of 
either or the wills of both. But in respect of this relation 
reasoning goes for little : the characters of those concerned 
determine the form it takes. The only effect which ethical 
considerations are likely to have is that of moderating the 
use of such supremacy as eventually arises. 

The remaining question, equally involved or more 
involved, concerns the possession and management of 
children. Decisions about management have to be made 
8 



162 JUSTICE. 

daily ; and decisions about possession must be made in all 
cases of separation. What are the relative claims of 
husband and wife in such cases ? On the one hand, it may- 
be said of the direct physical claims, otherwise equal, that 
that of the mother is rendered far greater by the continued 
nutrition before and after birth, than that of the father. 
On the other hand, it may be urged on the part of the 
father, that in the normal order the food by which the 
mother has been supported and the nutrition of the infant 
made possible, has been provided by his labour. Whether 
this counter-claim be or be not equivalent, it must be 
admitted that the claim of the mother cannot well be less 
than that of the father. Of the compromise respecting 
management which justice thus appears to dictate, we may 
perhaps reasonably say that the power of the mother may 
fitly predominate during the earlier part of a child's life, 
and that of the father during the later part. The maternal 
nature is better adjusted to the needs of infancy and early 
childhood than the paternal nature ; while for fitting chil- 
dren, and especially boys, for the battle of life, the father, 
who has had most experience of it, may be considered the 
best guide. But it seems alike inequitable and inexpedient 
that the power of either should at any time be exercised to 
the exclusion of the power of the other. Of the respective 
claims to possession where separation takes place, some 
guidance is again furnished by consideration of children's 
welfare; an equal division, where it is possible, being so 
made that the younger remain with the mother and the 
elder go with the father. Evidently, however, nothing is 
here possible but compromise based on consideration of 
the special circumstances. 

Concerning the claims of women, as domestically asso- 
ciated with men, I may add that here in England, 
and still more in America, the need for urging them is 
not pressing. In some cases, indeed, there is a converse 
need. But there are other civilized societies in which 



THE RIGHTS OF WOMEN. 163 

tlieir claims are very inadequately recognized : instance 
Germany.* 

§ 90. As in other cases, let us look now at the stages 
through which usage and law have grown into conformity 
with ethics. 

Save among the few primitive peoples who do not preach 
the virtues called Christian but merely practise them — save 
among those absolutely peaceful tribes here and there 
found who, while admirable in their general conduct, treat 
their women with equity as well as kindness, uncivilized 
tribes at large have no more conception of the rights of 
women than of the rights of brutes. Such regard for 
women's claims as enables mothers to survive and rear 
offspring, of course exists ; since tribes in which it is less 
than this disappear. But, frequently, the regard is not 
greater than is needful to prevent extinction. 

When we read of a Fijian that he might kill and eat his 
wife if he pleased ; of the Fuegians and wilder Australians 
that they sacrificed their old women for food; and of the 
many peoples among whom women are killed to accompany 
their dead husbands to the other world ; we see that they 
are commonly denied even the first of all rights. The facts 
that in these low stages women, leading the lives of slaves, 
are also sold as slaves, and, when married, are either stolen 
or bought, prove that no liberties are recognized as be- 
longing to them. And on remembering that where wives 
are habitually considered as property, the implication is 
that independent ownership of property by them can 
scarcely exist, we are shown that this further fundamental 
right is at the outset but very vaguely recognized. Though 

* With other reasons prompting this remark, is joined the remembrance 
of a conversation between two Germans in which, with contemptuous 
laughter, they were describing how, in England, they had often seen on a 
Sunday or other holiday, an artizan relieving his wife by carrying the child 
they had with them. Their sneers produced in me a feeling of shame — but 
not for the artizan. 



164 JUSTICE. 

the matter is in many cases complicated and qualified by 
the system of descent in the female line, it is certain that, 
speaking generally, in rude societies where among men 
aggression is restrained only by fear of vengeance, the 
claims of women are habitually disregarded. 

To trace up in this place the rising status of women is 
out of the question. Passing over those ancient societies 
in which descent in the female line gave to women a rela- 
tively high position, as it did among the Egyptians, it will 
suffice to note that in societies which have arisen by 
aggregation of patriarchal groups, the rights of women, at 
first scarcely more recognized than among savages, have, 
daring these two thousand years, gradually established 
themselves. Limiting our attention to the Aryans who over- 
spread Europe, we see that save where, as indicated by 
Tacitus, women, by sharing in the dangers of war, gained 
a better position (a connexion of facts which we find among 
various peoples), they were absolutely subordinated. The 
primitive Germans bought their wives ; and husbands might 
sell and even kill them. In the early Teutonic society, as 
in the early Roman society, there was perpetual tutelage of 
women, and consequent incapacity for independent owner- 
ship of property. A like state of things existed here in 
the old English period. Brides were purchased : their 
wills counting for nothing in the bargains. Mitigations 
gradually came. Among the Romans the requirement that 
a bride should be transferred to the bridegroom by legal 
conveyance, ceased to be observed. The life and death 
power came to an end : though sometimes reappearing, as 
when the early Angevin ruler, Fulc the Black, burnt his 
wife. Generalizing the facts we see that as life became 
less exclusively militant, the subjection of women to men 
became less extreme. How that decline of the system of 
status and rise of the system of contract, which characterizes 
industrialism, ameliorated, in early days, the position of 
women, is curiously shown by the occurrence of their 



THE EIGHTS OF WOMEN. 165 

signatures in the documents of guilds, while yet their 
position outside of the guilds remained much as before. 
This connexion has continued to be a general one. Both 
in England and in America, where the industrial type of 
organization is most developed, the legal status of women 
is higher than on the continent, where militancy is more 
pronounced. Add to which that among ourselves, along 
with the modern growth of free institutions characterizing 
predominant industrialism, the positions of women have been 
with increasing rapidity approximated to those of men. 

Here again, then, ethical deductions harmonize with 
historical inductions. As in preceding chapters we saw 
that each of those corollaries from the law of equal freedom 
which we call a right, has been better established as fast 
as a higher social life has been reached ; so here, we see 
that the general body of such rights, originally denied 
entirely to women, has, in the course of this same progress, 
been acquired by them. 

§ 91. There has still to be considered from the ethical 
point of view, the political position of women as compared 
with the political position of men ; but until the last of 
these has been dealt with, we cannot in a complete way 
deal with the first. When, presently, we enter on the con- 
sideration of what are commonly called " political rights," 
we shall find need for changing, in essential ways, the 
current conceptions of them ; and until this has been done 
the political rights of women cannot be adequately treated 
of. There is, however, one aspect of the matter which we 
may deal with now no less conveniently than hereafter. 

Are the political rights of women the same as those of 
men ? The assumption that they are the same is now 
widely made. Along with that identity of rights above set 
forth as arising from the human nature common to the two 
sexes, there is supposed to go an identity of rights in 
respect to the direction of public affairs. At first sight 



166 JUSTICE. 

it seems that the two properly go together; but con- 
sideration shows that this is not so. Citizenship does not 
include only the giving of votes, joined now and again with 
the fulfilment of representative functions. It includes also 
certain serious responsibilities. But if so, there cannot be 
equality of citizenship unless along with the share of good 
there goes the share of evil. To call that equality of 
citizenship under which some have their powers gratis, 
while others pay for their powers by undertaking risks, is 
absurd. Now men, whatever political powers they may in 
any case possess, are at the same time severally liable to 
the loss of liberty, to the privation, and occasionally to the 
death, consequent on having to defend the country; and if 
women, along with the same political powers, have not the 
same liabilities, their position is not one of equality but one 
of supremacy. 

Unless, therefore, women furnish contingents to the army 
and navy such as men furnish, it is manifest that, ethically 
considered, the question of the equal "political rights," so- 
called, of women, cannot be entertained until there is 
reached a state of permanent peace. Then only will it be 
possible (whether desirable or not) to make the political 
positions of men and women the same. 

It should be added that of course this reason does not 
negative the claims of women to equal shares in local 
governments and administrations. If it is contended that 
these should be withheld^ it must be for reasons for 
other kinds. 



CHAPTER XXI. 

THE EIGHTS OF CHILDREN. 

§ 92. The reader who remembers that at the outset we 
recognized a fundamental distinction between the ethics' of 
the family and the ethics of the State, and saw that welfare 
of the species requires the maintenance of two antagonist 
principles in them respectively, will infer that the rights of 
children must have a nature quite different from that of the 
rights of adults. He will also infer that since children are 
gradually transformed into adults, there must be a contin- 
ually changing relation between the two kinds of rights, 
and need for a varying compromise. 

Preservation of the race implies both self-sustentation 
and sustentation of offspring. If, assuming preservation 
of the race to be a good end, we infer that it is right to 
achieve these two sustentations ; and if, therefore, the 
conditions precedent, without which they cannot be achieved, 
become what we call rights ; it results that children have 
rights (or rather, for distinction sake, let us say rightful 
claims) to those materials and aids needful for life and 
growth, which, by implication, it is the duty of parents to 
supply. Whereas during mature life, the rights are so 
many special forms of that general freedom of action which 
is requisite for the- procuring of food, clothing, shelter, &c; 
during immature life the rightful claims are to the food, 
clothing, shelter, &c, themselves, and not to those forms of 



168 JUSTICE. 

freedom which make possible the obtainment of them. 
While yefc its faculties are undeveloped the child cannot 
occupy various parts of the sphere of activity occupied by 
the adult. Daring this stage of inability, such needful 
benefits as are naturally to be gained only within these 
unusable regions of activity, must come to it gratis. And, 
deduced as its claims to them are from the same primary 
requirement (preservation of the species), they must be 
considered as equally valid with, the claims which the adult 
derives from the law of equal freedom. 

I use the foregoing verbal distinction between the rights 
of adults and the rightful claims of children, because, in the 
general consciousness, rights are to so large an extent 
associated with, activities and the products of activities, that 
some confusion of thought arises if we ascribe them to 
infants and young children, who are incapable of carrying 
on such activities and obtaining such products. 

§ 93. Still regarding preservation of the species as the 
ultimate end, we must infer that while in large measure 
children's rightful claims are to the products of activities, 
rather than to the spheres in which those activities are 
carried on, children have, at the same time, rightful claims 
to such parts of those spheres of activity as they can 
advantageously use. For if the desideratum is preservation 
of the species, then, to achieve it, the members of each 
generation have not only to be supplied by parents with 
such food, clothing and shelter as are requisite, but have 
also to receive from them such aids and opportunities as, 
by enabling them to exercise their faculties, shall produce 
in them fitness for adult life. By leading their young ones 
to use their limbs and senses, even inferior creatures, how- 
ever unconsciously, fulfil this requirement to some extent. 
And if for the comparatively simple lives of birds and* 
quadrupeds such jrieedf ul preparation has to be made, still 
more has it to be made for the complex lives of mankind, 



THE EIGHTS OP CHILDKEN. 169 

and still more does there follow the responsibility of pro- 
viding for it and furthering it. 

How far the lives of parents must, in the due discharge 
of these responsibilities, be subordinated to the lives of 
children, is a question to which no definite answer can be 
given. In multitudinous kinds of inferior creatures, each 
generation is completely sacrificed to the next : eggs having 
been laid the parents forthwith die. But among higher 
creatures, which have to give much aid to their offspring 
while they grow, or which rear successive broods of off- 
spring, or both, this of course is not the case. Here the 
welfare of the species demands that the parents shall con- 
tinue to live in full vigour, that they may adequately 
nurture their offspring during their periods of immaturity. 
This is of course especially the case with mankind ; since 
the period over which aid has to be given to offspring is 
very long. Hence, in estimating the relative claims of child 
and parent, it is inferable that parental sacrifices must 
not be such as will incapacitate for the full performance of 
parental duties. Undue sacrifices are eventually to the dis- 
advantage of the offspring, and, by implication, to the dis- 
advantage of the species. To which add that, since the 
well-being and happiness of parents is itself an end which 
forms part of the general end, there is a further ethical 
reason why the self-subordination of parents must be kept 
within moderate limits. 

§ 94. From the rightful claims of children on parents, 
we pass now to the correlative duties of children to 
parents. As before we must be content with a com- 
promise which changes gradually during the progress 
from infancy to maturity. 

Though, as we have seen, the child has a rightful claim 
to food, clothing, shelter, and other aids to development, 
yet it has not a right to that self-direction which is the 
normal accompaniment of self-sustentation. There are two 



170 JUSTICE. 

reasons for not admitting this right — the one that exercise 
of it would be mischievous to itself, and the other that it 
would imply an ignoring of the claim of parent on child 
which is the reciprocal of the claim of child on parent. 
The first is self-evident, and the second scarcely needs 
exposition. Though here there can be made no such 
measurement of relative claims as that which the law of 
equal freedom enables us to make between adults ; yet, if 
we guide ourselves by that law as well as may be, it results 
that for sustentation and other aids received there should 
be given whatever equivalent is possible in the form of 
obedience and the rendering of small services. 

Meanwhile, in view of the ultimate end — the welfare of 
the species — this reciprocal relation between mature and 
immature should be approximated to the relation between 
adults as fast as there are acquired the powers of self- 
sustentation and self-direction. To be fitted for independent 
or self-directed activities there must be practice in such 
activities ; and to this end a gradually increased freedom. 
A's a matter of equity, too, the same thing is implied. 
Where a child becomes in a considerable degree self- 
sustaining before the adult age is reached, there arises a 
just claim to a proportionate amount of freedom. 

Of course, essentially at variance as arethe ethics of the 
family and the ethics of the State, the transition from 
guidance by the one to guidance by the other, must ever 
continue to be full of perplexities. We can expect only 
that the compromise to be made in every case, while not 
forgetting the welfare of the race, shall balance fairly 
between the claims of the two who are immediately 
concerned : not sacrificing unduly either the one or 
the other. 

§ 95. Still more in the case of children than in the case 
of women, do we see that progress from the lower to 
the higher types of society is accompanied by increasing 



THE RIGHTS OP CHILDREN. 171 

recognition of rightful claims. Alike in respect of life, 
liberty, and property, the change is traceable. 

In every quarter of the globe and among all varieties of 
men, infanticide exists, or has existed, as a customary or 
legalized usage — carried sometimes to the extent of one- 
half of those born. Especially where, the means of sub- 
sistence being small, much increase of the tribe is 
disastrous, the sacrifices of the newly-born are frequent: 
the females being those oftenest killed because they do 
not promise to be of value in war. The practices of the 
Greeks, as well as those of the early Eomans, among 
whom a father might kill his child at will, show that 
regard for the rights of the immature was no greater in 
law, though it may have been greater in usage. Of the 
early Teutons and Celts the like may be said : their habit 
of exposing infants, and in that way indirectly killing them, 
continued long after denunciation of it by the Christian 
church. Of course with disregard for the lives of the 
young has everywhere gone disregard for their liberties. 
The practice of selling them, either for adoption ■ or as 
slaves, has prevailed widely. Not only among the 
Fuegians, the people of New Guinea, the New Zea- 
landers, the Dyaks, the Malagasy, and many other un- 
civilized peoples, is there barter of children, but children 
were similarly dealt with by the forefathers of the civilized. 
Hebrew custom allowed sale of them, and seizure for debt. 
The Eomans continued to sell them down to the time of 
the emperors, and after the establishment of Christianity. 
By the Celts of Gaul the like traffic was carried on until 
edicts of the Roman emperors suppressed it ; and the 
Germans persisted in it till the reign of Charlemagne. 
Of course, if the liberties of the young were disregarded in 
this extreme way, they were disregarded in minor ways. 
No matter what age a Roman had attained, he could not 
marry without bis father's consent. Of course, too, along 
with non-recognition of the rights of life and liberty went 



172 JUSTICE. 

non-recognition of the right of property. If a child could 
not possess himself, he clearly could not possess anything 
else. Hence the fact that by legal devices only did the 
son among the Romans acquire independent ownership of 
certain kinds of property, such as spoil taken in war and 
certain salaries for civil services. 

Through what stages there has been eventually reached 
that large admission of children's rightful claims now seen 
in civilized societies, cannot here be described. Successive 
changes have gradually established for the young large 
liberties — liberties which are, indeed, in some cases, as in 
the United States, greater than is either just or politic. 
That which it concerns us here chiefly to note is that 
recognition of the rights of children has progressed fastest 
and farthest where the industrial type has most outgrown 
the militant type. In France, down to the time of the 
revolution, children continued to be treated as slaves. 
Sons who, even when adults, offended their fathers, could 
be, and sometimes were, put in prison by them ; and girls 
were thrust into convents against their wills. Only after 
the revolution were the rights of sons "at last proclaimed," 
and " individual liberty was no longer at the mercy of 
lettres de cachet obtained by unjust or cruel fathers. " But 
though among ourselves in past centuries the treatment 
of children was harsh, a father had not the power of 
imprisoning his son simply on his own motion. Though, 
up to recent generations, parental interdicts on the mar- 
riages of children, even when of age, were to a large extent 
voluntarily recognized, they were not legally enforced. 
And while at the present time, on the continent, parental 
restraints on marriage to a great extent prevail, in England 
marriage contrary to parental wishes, quite practicable, 
does not even excite much reprobation: oftentimes, indeed, 
no reprobation. 

Thus an extreme contrast exists between those early 
states in which a child, like a brute, could be killed with 



THE RIGHTS OF CHILDREN. 173 

impunity, and modern states in which infanticide is classed 
as murder and artificial abortion as a crime, in which harsh 
treatment or inadequate sustentation by a parent is punish- 
able, and in which, under trust, a child is capable of 
valid ownership. 

§ 96. Yet once more, then, we meet with congruity 
between theory and practice — between ethical injunctions 
and political ameliorations — between deductions from 
fundamental principles and inductions from experience. 

When we keep simultaneously in view the ethics of the 
family and the ethics of the State, and the necessity for a 
changing compromise between the two during the progress 
of children from infancy to maturity — when we pay regard 
at the same time to the welfare of the individual and the 
preservation of the race, we are led to approximately 
definite conclusions respecting the rightful claims of 
children. These conclusions, reached a priori, we find 
verified a posteriori by the facts of history; which show 
us that along with progress from lower to higher types of 
society there has gone increasing conformity of laws and 
usages to moral requirements. 



CHAPTER XXII. 
POLITICAL EIGHTS— SO-CALLED. 

§ 97. Every day yields illustrations of the way in 
which men think only of the proximate and ignore the 
remote. The power of a locomotive is currently ascribed 
to steam. There is no adequate consciousness of the fact 
that the steam is simply an intermediator and not an 
initiator — that the initiator is the heat of the fire. It 
is not perceived that the steam-engine is in truth a heat- 
engine, differing from other heat-engines (such as those 
in which gas is employed) only in the instrumentality 
employed to transform molecular motion into molar motion. 
This limitation of consciousness to direct relations and 
ignoring of indirect relations, habitually vitiates thinking 
about social affairs. The primary effect produced by one 
who builds a house, or makes a road, or drains a field, 
is that he sets men to work; and the work, more pro- 
minent in thought than the sustenance obtained by it, 
comes to be regarded as itself a benefit. The imagined 
good is not increase in the stock of commodities or 
appliances which subserve human wants, but the expendi- 
ture of the labour which produces them. Hence various 
fallacies — hence the comment on destruction by fire that 
it is good for trade ; hence the delusion that machinery 
is injurious to the people. If instead of the proximate 
thing, labour, there were contemplated the ultimate thing, 
produce, such errors would be avoided. Similarly is it 
with currency fallacies. Coins, which may be exchanged 



POLITICAL RIGHTS — SO-CALLED. 175 

for all kinds of desired things, come themselves to be 
connected in men's minds with the idea of value, rather 
than the things they will purchase; which, as satisfying 
desires, are the truly valuable things. And then promises- 
to-pay, serving in place of coins, intrinsically valueless 
though they are, are, by daily experience of their purchasing 
power, so associated with the idea of value that abundance 
of them becomes identified in thought with wealth; and 
there results the belief that it only needs a profusion 
of bank-notes to insure national prosperity : errors which 
would be avoided were the reasoning carried on in terms of 
commodities, instead of being carried on in terms of these 
symbols. This usurpation of consciousness by the proxi- 
mate and expulsion from it of the remote — this forgetting 
of the ends and erecting the means into ends, is again 
shown us in education. The time was when know- 
ledge anciently acquired having ceased to be current, the 
learning of Latin and Greek, in which that knowledge was 
recorded, became indispensable as a means to acquirement 
of it ; and it was then regarded as a means. But now, long 
after this ancient knowledge has been rendered accessible 
in our language, and now, when a vastly larger mass of 
knowledge has been accumulated, this learning of Latin 
and Greek is persisted in; and, moreover, has come to be 
practically regarded as the end, to the exclusion of the end 
as originally conceived. Young men who are tolerably 
familiar with these ancient languages, are supposed to be 
educated; though they may have acquired but little of 
what knowledge there is embodied in them and next 
to nothing of the immensely greater amount of know- 
ledge and immensely more valuable knowledge which cen- 
turies of research have established. 

§ 98. With what view is here made this general 
remark, thus variously illustrated ? With the view of pre- 
paring the way for a further illustration which now 



176 JUSTICE. 

concerns us. Current political thought is profoundly 
vitiated by this mistaking of means for ends, and by this 
pursuit of the means to the neglect of the ends. Hence, 
among others, the illusions which prevail concerning 
' ' political rights." 

There are no further rights, truly so called, than such as 
have been set forth. If, as we have seen, rights are but so 
many separate parts of a man's general freedom to pursue the 
objects of life, with such limitations only as result from the 
presence of other men who have similarly to pursue such 
objects, then, if a man's freedom is not in any way further 
restricted, he possesses all his rights. If the integrity of 
his body is in no way or degree interfered with ; if there is 
no impediment to his motion and locomotion ; if his owner- 
ship of all that he has earned or otherwise acquired is 
fully respected ; if he may give or bequeath as he pleases, 
occupy himself in what way he likes, make a contract 
or exchange with whomsoever he wills, hold any opinions 
and express them in speech or print, &c, &c, nothing 
remains for him to demand under the name of rights, 
as properly understood. Any other claims he may have 
must be of a different kind — cannot be classed as rights, 
Many times and in various ways we have seen that rights, 
truly so called, originate from the laws of life as carried on 
in the associated state. The social arrangements may be 
such as fully recognize them, or such as ignore them in 
greater or smaller degrees. The social arrangements 
cannot create them, but can simply conform to them or 
not conform to them. Such parts of the social arrange- 
ments as make up what we call government, are instru- 
mental to the maintenance of rights, here in great measure 
and there in small measure ; but in whatever measure, they 
are simply instrumental, and whatever they have in them 
which may be called right, must be so called only in virtue 
of their efficiency in maintaining rights. 

But because of this tendency to occupation of the mind 



POLITICAL RIGHTS — SO-CALLED. 177 

by the means and proportionate exclusion of the ends, it 
results that those governmental arrangements which con- 
duce to maintenance of rights come to be regarded as them- 
selves rights — nay, come to be thought of as occupying a 
foremost place in this category. Those shares of political 
power which in the more advanced nations citizens have 
come to possess, and which experience has shown to be 
good guaranties for the maintenance of life, liberty, and 
property, are spoken of as though the claims to them 
were of the same nature as the claims to life, liberty, 
and property themselves. Yet there is no kinship between 
the two. The giving of a vote, considered in itself, in no 
way furthers the voter's life, as does the exercise of those 
various liberties we properly call rights. All we can say is 
that the possession of the franchise by each citizen gives 
the citizens in general powers of checking trespasses upon 
their rights : powers which they may or may not use to 
good purpose. 

The confusion between means and ends has in this case 
been almost inevitable. Contrasts between the states of 
different nations, and between the states of the same nation 
at different periods, have strongly impressed men with the 
general truth that if governmental power is in the hands of 
one, or in the hands of a few, it will be used to advantage 
the one or the few ; and that the many will be correspond- 
ingly disadvantaged. That is to say, those who have not 
the power will be subject to greater restraints and burdens 
than those who have the power — will be defrauded of that 
liberty of each, limited only by the like liberties of all, 
which equity demands — will have their rights more or less 
seriously infringed. And as experience has shown that a 
wider distribution of political power is followed by decrease 
of these trespasses, maintenance of a popular form of 
government has come to be identified with the maintenance 
of rights, and the power of giving a vote, being instrumental 
to maintenance of rights, has come to be regarded as itself 



178 JUSTICE. 

a right — nay, often usurps in the general apprehension 
the place of the rights properly so called. 

How true this is we shall learn on observing that where 
so-called political rights are possessed by all, rights properly 
so-called are often unscrupulously trampled upon. In 
France bureaucratic despotism under the Republic, is as 
great as it was under the Empire. Exactions and com- 
pulsions are no less numerous and peremptory; and, as was 
declared by English trade-union delegates to a congress in 
Paris, the invasion of citizens' liberties in France goes to 
an extent which "is a disgrace to, and an anomaly in, a 
Republican nation." Similarly in the United States. Uni- 
versal suffrage does not prevent the corruptions of municipal 
governments, which impose heavy local taxes and do very 
inefficient work ; does not prevent the growth of general 
and local organizations by which each individual is com- 
pelled to surrender his powers to wirepullers and bosses ; 
does not prevent citizens from being coerced in their private 
lives by dictating what they shall not drink ; does not 
prevent an enormous majority of consumers from being 
heavily taxed by a protective tariff for the benefit of a small 
minority of manufacturers and artizans ; nay, does not even 
effectually preserve men from violent deaths, but, in sundry 
States, allows of frequent murders, checked only by law- 
officers, who are themselves liable to be shot in the per- 
formance of their duties. Nor indeed are the results 
altogether different here. Far from having effected better 
maintenance of men's rights properly so-called, the recent 
extensions of the franchise have been followed by increased 
trespasses on them — more numerous orders to do this and not 
to do that, and greater abstractions from their purses. 

Thus both at home and abroad the disproof is clear. 
From the extreme case in which men use their so-called 
political rights to surrender their power of preserving their 
rights properly so called, as by the plebiscite which elected 
Napoleon III., to the cases in which men let themselves be 



POLITICAL EIGHTS — SO-CALLED. 179 

coerced into sending their children to receive lessons in 
grammar and gossip about kings, often at the cost of under- 
feeding and weak bodies, we find none of the supposed iden- 
tity. Though the so-called political rights may be used for 
the maintenance of liberties, they may fail to be so used, and 
may even be used for the establishment of tyrannies. 

§ 99. Beyond that confusion of means with ends, which 
as we here see is a cause of this current misapprehension, 
there is a further cause. The conception of a right is com- 
posite, and there is a liability to mistake the presence of 
one of its factors for the presence of both. 

As repeatedly shown, the positive element in the concep- 
tion is liberty ; while the negative element is the limitation 
implied by other's equal liberties. But the two rarely co- 
exist in due proportion, and in some cases do not co-exist 
at all. There may be liberty exercised without any re- 
straint; resulting in perpetual aggressions and universal 
warfare. Conversely, there may be an equality in restraints 
which are carried so far as practically to destroy liberty. 
Citizens may be all equally coerced to the extent of 
enslaving them, by some power which they have set up — 
may, in pursuance of philanthropic or other ends, be 
severally deprived by it of large parts of that freedom 
which remains to each after duly regarding the liberties of 
others. Now the confusion of thought above pointed out, 
which leads to this classing of so-called political rights with 
rights properly so called, arises in part from thinking of the 
secondary trait, equality, while not thinking of the primary 
trait, liberty. The growth of the one has so generally been 
associated with the growth of the other, that the two 
have come to be thought of as necessary concomitants, and 
it is assumed that if the equality is obtained the liberty 
is ensured. 

But, as above shown, this is by no means the case. Men 
may use their equal freedom to put themselves in bondage ; 



180 JUSTICE. 

failing as they do to understand that the demand for 
equality taken by itself is fulfilled if the equality is in 
degrees of oppression borne and amounts of pain suffered. 
They overlook the truth that the acquirement of so-called 
political rights is by no means equivalent to the acquirement 
of rights properly so called. The one is but an instrumen- 
tality for the obtainment and maintenance of the other; and 
it may or may not be used to achieve those ends. The 
essential question is — How are rights, properly so called, to 
be preserved — defended against aggressors, foreign and 
domestic ? This or that system of government is but a 
system of appliances. Government by representation is 
one of these systems of appliances; and the choosing of 
representatives by the votes of all citizens is one of various 
ways in which a representative government may be formed. 
Hence voting being simply a method of creating an 
appliance for the preservation of rights, the question is 
whether universal possession of votes conduces to creation 
of the best appliance for preservation of rights. We have 
seen above that it does not effectually secure this end ; and 
we shall hereafter see that under existing conditions it is 
not likely to secure it. 

But further discussion of this matter must be postponed. 
We must first deal with a more general topic — " The nature 
of the State/* 



CHAPTER XXIII. 

THE NATURE OF THE STATE. 

§ 100. The study of evolution at large makes familiar 
the truth that the nature of a thing is far from being fixed. 
Without change of identity, it may at one time have one 
nature and at a subsequent time quite a different nature. 
The contrast between a nebulous spheroid and the solid 
planet into which it eventually concentrates, is scarcely 
greater than the contrasts which everywhere present them- 
selves. 

Throughout the organic world this change of nature is 
practically universal. Here is a Polype which, after a period 
of sedentary life, splits up into segments which severally 
detach themselves as free-swimming Medusae. There is a 
small larva of Annulose type which, moving about actively 
in the water for a time, fixes itself on a fish, loses its motor 
organs, and, feeding parasitically, grows into little more 
than stomach and egg-bags ; and there is another which 
ends the wanderings of its early life by settling down on a 
rock and, developing into what is popularly known as an 
acorn-shell, gets its livelihood by sweeping into its gullet 
minute creatures from the surrounding water. Now the 
case is that of a worm-like form which, living and feeding 
for a long time in the water, finally, after a period of rest, 
bursts its pupa-shell and flies away as a gnat ; and again it 
is that of the maggot and flesh-fly, or grub and moth, which 
everyday experience makes so familiar. Strangest and 



182 JUSTICE. 

most extreme of all, however, are those metamorphoses 
presented by some of the low aquatic Algce which, moving 
about actively for a brief period and displaying the 
characters of animals, presently fix themselves, sprout out, 
and become plants. 

Contemplation of such facts, abundant beyond enumera- 
tion and wonderfully various, warns us against the error 
likely to arise everywhere from the tacit assumption that 
the nature of a thing has been, is, and always will be, the 
same. We shall be led by it, contrariwise, to expect change 
of nature — very possibly fundamental change. 

§ 101. It is tacitly assumed by nearly all that there is 
but one right conception of the State ; whereas if, recog- 
nizing the truth that societies evolve, we learn the lessons 
which evolution at large teaches, we shall infer that 
probably the State has, in different places and times, 
essentially different natures. The agreement between 
inference and fact will soon become manifest. 

Not to dwell on the earliest types, mostly characterized 
by descent in the female line, we may consider first the 
kind of group intermediate in character between the family 
and the society — the patriarchal group. This, as illustrated 
in the nomadic horde, forms a society in which the 
relationships of the individuals to one another and to their 
common head, as well as to the common property, give to 
the structure and functions of the incorporated whole a 
nature quite unlike the natures of bodies politic such as we 
now know. Even when such a group develops into a 
village-community, which, as shown in India, may have 
" a complete staff of functionaries, for internal govern- 
ment," the generality (though not universality) of relation- 
ships among the associated persons gives to it a corporate 
nature markedly different from that of a society in which 
ties of blood have ceased to be dominant factors. 

When, ascending to a higher stage of composition, we 



THE NATURE OP THE STATE. 183 

look at communities like those of Greece, in which many 
clusters of relations are united, so that members of various 
families, gentes and phratries, are interfused without losing 
their identities, and in which the respective clusters have 
corporate interests independent of, and often antagonistic 
to, one another; it is undeniable that the nature of the 
community as a whole differs greatly from that of a modern 
community, in which complete amalgamation of component 
clusters has destroyed the primitive lines of division ; and 
in which, at the same time, individuals, and not family- 
clusters, have become the political units. 

Once more, on remembering the contrast between the 
system of status and the system of contract, we cannot fail 
to see an essential unlikeness of nature between the two 
kinds of body-politic formed. In sundry ancient societies 
u the religious and political sanction, sometimes combined 
and sometimes separate, determined for every one his mode 
of life, his creed, his duties, and his place in society, 
without leaving any scope for the will or reason of the 
individual himself." But among ourselves neither religious 
nor political sanction has any such power; nor has any 
individual his position or his career in life prescribed 
for him. 

In presence of these facts we cannot rationally assume 
unity of nature in all bodies politic. So far from supposing 
that the general conception of the State framed by Aris- 
totle, and derived from societies known to him, holds now 
and serves for present guidance, we may conclude that, in 
all likelihood, it is inapplicable now and would misguide 
us if accepted. 

§ 102. Still more shall we be impressed with this truth 
if, instead of contrasting societies in their natures, we con- 
trast them in their actions. Let us observe the several 
kinds of life they carry on. 

As evolution implies gradual transition, it follows that 



184 JUSTICE. 

extremely unlike as incorporated bodies of men may 
become, sharp divisions are impracticable. But bearing in 
mind this qualification, we may say that there are three 
distinct purposes for which men, originally dispersed as 
wandering families, may associate themselves more closely. 
The desire for companionship is one prompter : though not 
universal, sociality is a general trait of human beings which 
leads to aggregation. A second prompter is the need for 
combined action against enemies, animal or human, or both — 
co-operation, now to resist external aggression and now to 
carry on external aggression. The third end to be achieved 
is that of facilitating sustentation by mutual aid — co-opera- 
tion for the better satisfying of bodily wants and eventually 
of mental wants. In most cases all three ends are 
subserved. Not only, however, are they theoretically dis- 
tinguishable, but each one of them is separately exemplified. 

Of social groups which satisfy the desire for companion- 
ship only, those formed by the Esquimaux may be named. 
The men composing one of them are severally independent. 
Having no need to combine for external offence or defence, 
they need no leaders in war and have no political rule : the 
only control exercised over each being the display of 
opinion by his fellows. Nor is there any division of labour. 
Industrial co-operation is limited to that between man and 
wife in each family. The society has no further incorpo- 
ration than that which results from the juxta-position of its 
parts : there is no mutual dependence. 

The second class is multitudinous. Instances of its pure 
form are furnished by hunting-tribes at large, the activities 
of which alternate between chasing animals and going to 
war with one another; and instances are furnished by 
piratical tribes and tribes which subsist by raids on their 
neighbours, like the Masai. In such communities division 
of labour, if present at all, is but rudimentary. Co-operation 
is for carrying on external defence and offence, and is to 
scarcely any extent for carrying ou internal sustentation. 



THE NATURE OP THE STATE. 185 

Though when, by conquest, there are formed larger 
societies, some industrial co-operation begins, and increases 
as the societies increase, yet this, carried on by slaves 
and serfs, superintended by their owners, suffices in but 
small measure to qualify the essential character. This 
character is that of a body adapted for carrying on joint 
action against other such bodies. The lives of the units 
are subordinated to the extent needful for preserving 
(and in some cases extending) the life of the whole. 
Tribes and nations in which such subordination is not 
maintained must, other things equal, disappear before 
tribes and nations in which it is maintained; and hence 
such subordination must, by survival of the fittest, become 
an established trait. Along with the unquestioned assump- 
tion appropriate to this type, that war is the business of 
life, there goes the belief that each individual is a vassal 
of the community — that, as the Greeks held, the citizen 
does not belong to himself, or to his family, but to his city. 
And naturally, along with this merging of the individual's 
claims in the claims of the aggregate, there goes such 
coercion of him by the aggregate as makes him fit for its 
purposes. He is subject to such teaching and discipline 
and control as are deemed requisite for making him a good 
warrior or good servant of the State. 

To exemplify societies of the third class in a satisfactory 
way, is impracticable; because fully developed forms of 
them do not yet exist. Such few perfectly peaceful tribes 
as are found in some Papuan islands, or occupying parts of 
India so malarious that the warlike races around cannot 
live in them, are prevented by their unfit environments 
from developing into large industrial societies. The Bodo, 
the Dhinial, the Kocch and other aboriginal peoples who, 
living by agriculture, cluster in villages of from ten to forty 
houses, and shift to new tracts when they exhaust the old, 
show us, beyond the division of labour between the sexes, 
no further co-operation than rendering mutual assistance 
9 



186 JUSTICE. 

in building their houses and clearing their plots. Speaking 
generally, it is only after conquest has consolidated small 
communities into larger ones, that there arise opportunities 
for the growth of mutual dependence among men who 
have devoted themselves to different industries. Hence 
throughout long periods the industrial organization, merely 
subservient to the militant organization, has had its 
essential nature disguised. Now, however, it has become 
manifest that the most developed modern nations are 
organized on a principle fundamentally unlike that on 
which the great mass of past nations have been organized. 
If, ignoring recent retrograde changes throughout Europe, 
we compare societies of ancient times and of the middle 
ages, with societies of our own times, and especially with 
those of England and America, we see fundamental 
differences. In the one case, speaking broadly, all free 
men are warriors and industry is left to slaves and serfs ; in 
the other case but few free men are warriors, while the vast 
mass of them are occupied in production and distribution. 
In the one case the numerous warriors become such under 
compulsion ; while in the other case the relatively few 
warriors become such under agreement. Evidently, then, 
the essential contrast is that in the one case the aggregate 
exercises great coercion over its units ; while in the other 
case it exercises coercion which is small and tends to become 
less as militancy declines. 

What is the meaning of this contrast reduced to its lowest 
terms ? In either case the end to be achieved by the 
society in its corporate capacity, that is, by the State, 
is the welfare of its units; for the society having as an 
aggregate no sentiency, its preservation is a desideratum 
only as subserving individual sentiencies. How does it 
subserve individual sentiencies ? Primarily by preventing 
interferences with the carrying on of individual lives. 
In the first stage, death and injury of its members by 
external foes is that which the incorporated society has 



THE NATURE OF THE STATE. 187 

chiefly, though not wholly, to prevent; and it is ethic- 
ally warranted in coercing its members to the extent 
required for this. In the last stage, death and injury of its 
members by internal trespasses is that which it has chiefly 
if not wholly to prevent; and the ethical warrant for 
coercion does not manifestly go beyond what is needful for 
preventing them. 

§ 103. This is not the place to consider whether with 
this last function any further function may be joined. 
Limited as our subject matter is to the nature of the State, 
it concerns us only to observe the radical difference between 
these two social types. The truth to be emphasized is that 
a body politic which has to operate on other such bodies, and 
to that end must wield the combined forces of its component 
units, is fundamentally unlike a body politic which has to 
operate only on its component units. Whence it follows that 
political speculation which sets out with the assumption 
that the State has in all cases the same nature, must end in 
profoundly erroneous conclusions. 

A further implication must be pointed out. During long 
past periods, as well as in our own day, and for an indefinite 
time to come, there have been, are, and will be, changes, 
progressive and retrograde, approximating societies now to 
one type and now to the other : these types must be both 
mixed and unsettled. Indefinite and variable beliefs 
respecting the nature of the State must therefore be 
expected to prevail. 



CHAPTER XXIV. 
THE CONSTITUTION OF THE STATE. 

§ 104. Difference of ends usually implies difference of 
means. It is unlikely that a structure best fitted for one 
purpose will be best fitted for another purpose. 

If to preserve the lives of its units, and to maintain that 
freedom to pursue the objects of life which is ordinarily 
possessed by unconquered peoples, a society has to use its 
corporate action chiefly for dealing with environing societies; 
then its organization must be such as will bring into play the 
effectually-combined forces of its units at specific times and 
places. It needs no proof that if its units are left to act 
without concert they will be forthwith subjugated; and it 
needs no proof that to produce concerted action, they must 
be under direction. Conformity to such direction must be 
insured by compulsion; the agency which compels must 
issue consistent orders; and to this end the orders must 
emanate from a single authority. Tracing up the genesis of 
the militant type (see Principles of Sociology, §§ 547-561) 
leads irresistibly to the conclusion that for efficient external 
action of a society against other societies, centralization 
is necessary; and that establishment of it becomes more 
decided the more habitual is such external action. Not 
only does the fighting body itself become subject to 
despotic rule, but also the community which supports it. 



THE CONSTITUTION OP THE STATE. 189 

The will of the aggregate, acting through the governing 
power it has evolved, overrides and almost suppresses the 
wills of its individual members. Such rights as they are 
allowed they hold only on sufferance. 

Hence so long as militancy predominates, the constitution 
of the State must be one in which the ordinary citizen is 
subject either to an autocrat or to an oligarchy out of which 
an autocrat tends continually to arise. As we saw at the 
outset, such subjection, with its concomitant loss of freedom 
and contingent loss of life, has a quasi-ethical warrant 
when necessitated by defensive war. The partial suspen- 
sion of rights is justifiable when the object is to prevent 
those complete obliterations and losses of them which result 
from death or subjugation. Ordinarily, however, the mili- 
tant type of society is developed more by offensive wars 
than by defensive wars; and where this is the case, the 
accompanying constitution of the State has no ethical 
warrant. However desirable it may be that the superior 
races should conquer and replace the inferior races, and 
that hence during early stages aggressive wars subserve 
the interests of humanity; yet, as before said, the sub- 
serving of such interests after this manner must be classed 
with the subserving of life at large by the struggle for 
existence among inferior creatures — a species of action of 
which ethics takes no cognisance. 

Here, that which we have to note is that when the sur- 
rounding conditions are such that a society is endangered 
bodily by other societies, its required coercive constitution 
is one which, far though it may be from the absolutely 
right, is yet relatively right — is the least wrong which 
circumstances allow. 

§ 105. When, ignoring intermediate forms, we pass 
from the militant type to the industrial type, considered as 
fully developed, we see that the required constitution of the 
State is quite different. To maintain the conditions under 



190 JUSTICE. 

which life and its activities may be carried on, is in either 
case the end; but to maintain these conditions against 
external enemies, and to maintain them against internal 
enemies, are two widely unlike functions calling for widely 
unlike appliances. Observe the contrasts. 

In the one case the danger is directly that of the com- 
munity as a whole and indirectly that of individuals; 
while in the other case it is directly that of individuals 
and indirectly that of the community as a whole. In the 
one case the danger is large, concentrated, and in its first 
incidence local; while in the other case the dangers are 
multitudinous, small, and diffused. In the one case all 
members of the community are simultaneously threatened 
with injury ; while in the other case the injury threatened 
or experienced is now of one person now of another ; and 
the citizen at one time aggressed upon is at another time 
an aggressor. And while the vast evil to be dealt with in 
the one case is, when warded off, no longer to be feared for 
some time at least ; the evils to be dealt with in the other 
case, though small, are unceasing in their occurrence. 
Evidently, then, having functions so unlike, the political 
appliances employed should be unlike. 

For preventing murders, thefts, and frauds, there does 
not need an army ; and an army, were it used, could not 
deal with transgressions which are scattered everywhere. 
The required administration must be diffused as are the 
wrong-doings to be prevented or punished ; and its action 
must be continuous instead of being occasional. But in the 
absence of large combined forces required for military 
purposes, there does not need that coercive rule by which 
alone combined forces can be wielded. Contrariwise, there 
needs a rule adapted for maintaining the rights of each 
citizen against others, and which is also regardful of those 
rights in its own dealings with citizens. 

What is the appropriate constitution of the State ? At 
first sight it seems that since every citizen (supposing him 



THE CONSTITUTION OP THE STATE. 191 

not to be himself an aggressor) is interested in the preser- 
vation of life and property, the fulfilment of contracts, and 
the enforcement of all minor rights, the constitution of the 
State should be one in which each citizen has an equal 
share of power with his fellows. It appears undeniable 
that if, in pursuance of the law of equal freedom, men are 
to have equal rights secured to them, they ought to 
have equal powers in appointing the agency which secures 
such rights. 

In the last chapter but one it was shown that this is not 
a legitimate corollary; and various illustrations made it 
clear that the approved means did not achieve the desired 
end. Here we have to observe why they are not likely to 
achieve them. 

§ 106. Of truths concerning human conduct none is more 
certain than that men will, on the average, be swayed 
by their interests, or rather by their apparent interests. 
Government is itself necessitated by the general tendency 
to do this ; and every Act of Parliament makes provisions 
to exclude its injurious effects. How universally operative 
and how universally recognized such tendency is, every will, 
every lease, every contract proves. 

The working of this or that form of government is inevit- 
ably determined by this tendency. Of those who form 
parts of the political agency, and of those who directly or 
indirectly appoint them, it must be true, as of all others, 
that they will be swayed by their apparent interests. The 
laws of every country furnish proofs without end. And 
history having thus conclusively shown that those who 
have predominant power will use it to their own advantage, 
there has been drawn the inference that only by endowing 
all with power can the advantage of all be secured. Bat 
the fallacy is becoming obvious. 

A generation ago, while agitations for the wider diffusion 
of political power were active, orators and journalists daily 



192 JUSTICE. 

denounced the " class-legislation " of the aristocracy. But 
there was no recognition of the truth that if, instead of the 
class at that time paramount, another class were made 
paramount, there would result a new class-legislation in 
place of the old. That it has resulted every day proves. 
If it is true that a generation ago landowners and capitalists 
so adjusted public arrangements as to ease themselves and 
to press unduly upon others, it is no less true that now 
artizans and labourers, through representatives who are 
obliged to do their bidding, are fast remoulding our social 
system in ways which achieve their own gain through 
others' loss. Year after year more public agencies are 
established to give what seem gratis benefits, at the 
expense of those who pay taxes, local and general; and the 
mass of the people, receiving the benefits and relieved 
from the cost of maintaining the public agencies, advocate 
the multiplication of them. 

It is not true, then, that the possession of political power 
by all ensures justice to all. Contrariwise, experience 
makes obvious that which should have been obvious without 
experience, that with a universal distribution of votes the 
larger class will inevitably profit at the expense of the 
smaller class. Those higher earnings which more efficient 
actions bring to the superior, will not be all allowed to 
remain with them, but part will be drafted off in some 
indirect way to eke out the lower earnings of the less 
diligent or the less capable ; and in so far as this is done, 
the law of equal freedom must be broken. Evidently the 
constitution of the State appropriate to that industrial tpye 
of society in which equity is fully realized, must be one in 
which there is not a representation of individuals but a 
representation of interests. For the health of the social 
organism and the welfare of its members, a balance of 
functions is requisite; and this balance cannot be main- 
tained by giving to each function a power proportionate to 
the number of functionaries. The relative importance of 



THE CONSTITUTION OF THE STATE. 193 

the different functions is not measured by the number of 
units occupied in discharging them ; and hence the general 
welfare will not be achieved by giving to the various parts 
of the body politic, powers proportionate to their sizes. 

§ 107. Whether hereafter there will arise a form of 
society in which equal political powers may be given to 
individuals, without giving to classes powers which they 
will misuse, is an unanswerable question. It may be that 
the industrial type, perhaps by the development of co- 
operative organizations, which theoretically, though not at 
present practically, obliterate the distinction between 
employer and employed, may produce social arrangements 
under which antagonistic class-interests will either not exist, 
or will be so far mitigated as not seriously to complicate 
matters. And it may be that in times to come men's regard 
for others' interests will so far check undue pursuit of 
their own interests, that no appreciable class-legislation 
will result from the equal distribution of political powers. 
But the truth we have to recognize is that with such 
humanity as now exists, and must for a long time exist, 
the possession of what are called equal .political rights will 
not insure the maintenance of equal rights properly so-called. 

Moreover, that constitution of the State which relative 
ethics justifies must, for another reason, diverge widely 
from that justified by absolute ethics. The forms of 
government appropriate to existing civilized societies must 
be transitional forms. As implied throughout the argu- 
ment, the constitution of a State devoted to militancy must 
be fundamentally unlike the constitution of a State devoted 
to industrialism; and during the stages of progress from 
the one to the other, mixed forms of constitution have to 
be passed through — variable forms which are adjusted now 
to the one set of requirements, now to the other, as con- 
tingencies determine. For, as I have shown elsewhere 
(Principles of Sociology, §§ 547-575), if we exclude those 



194 JUSTICE. 

non-progressive types of mankind which have evolved 
social organizations that are no longer changeable, and 
contemplate the more plastic types still evolving, individ- 
ually and socially, we see that increase in either kind of 
social action begins soon to produce change of structure. 

We must therefore conclude that there is a quasi-ethical 
warrant for these mixed constitutions of the State which 
are appropriate to these mixed requirements. To maintain 
the conditions under which individual life and its activities 
may be carried on, being the supreme end ; and maintenance 
of these conditions being endanged, now by masses of 
external enemies and now by single internal enemies; it 
results that there is a quasi-ethical justification for such 
political constitution as is best adapted to meet both kinds 
of dangers at any particular time ; and there must be 
tolerated such unfitness for the one end as is necessitated 
by fitness for the other. 

§ 108. The title of the chapter covers a further ques- 
tion, which must not be passed over — the use of political 
power by women. Already we have concluded that in 
militant societies, and partially militant societies, the 
possession of the franchise by women is not strictly 
equitable : they cannot justly have equal powers unless 
they have equal responsibilities. But here, supposing that 
with the cessation of militancy this obstacle should dis- 
appear, we have to ask whether, in that case, the giving of 
votes to women would be expedient. I say expedient, 
because, as we have seen, it is not a question of right in 
the direct and simple sense. The question is whether 
rights, properly so called, are likely to be better maintained 
if women have votes than if they have not. There are some 
reasons for concluding that maintenance of them would be 
less satisfactory rather than more satisfactory. 

The comparative impulsiveness of women is a trait which 
would make increase of their influence an injurious factor 



THE CONSTITUTION OF THE STATE. 195 

in legislation. Human beings at large, as at present con- 
stituted, are far too much swayed by special emotions, 
temporarily excited, and not held in check by the aggre- 
gate of other emotions; and women are carried away by 
the feelings of the moment still more than men are. This 
characteristic is at variance with that judicial-mindedness 
which should guide the making of laws. Freedom from 
passions excited by temporary causes or particular objects, 
is an obvious pre-requisite to good legislation. This pre- 
requisite is at present but imperfectly fulfilled, and it would 
be more imperfectly fulfilled were the franchise extended 
to women. 

This moral difference is accompanied by a kindred intel- 
lectual difference. Very few men, and still fewer women, 
form opinions in which the general and the abstract have 
a due place. The particular and the concrete are alone 
operative in their thoughts. Nine legislators out of ten, 
and uinety-nine voters out of a hundred, when discussing 
this or that measure, think only of the immediate results to 
be achieved — do not think at all of the indirect results, 
or of the effect which the precedent will have, or of the 
influence on men's characters. Had women votes, this 
absorption of consciousness in the proximate and personal 
to the exclusion of the remote and impersonal, would be 
still greater ; and the immense mischiefs at present 
produced would be augmented. 

At the outset it was shown that there is a radical opposi- 
tion between the ethics of the family and the ethics of the 
State, and that introduction of either into the sphere of 
the other is injurious — fatal, indeed, if extensive and 
continuous. Character is that which eventually determines 
conduct : the intelligence joined with it simply serving as a 
minister, procuring satisfactions for those feelings which 
make up the character. At present, both men and women 
are led by their feelings to vitiate the ethics of the State 
by introducing the ethics of the family. But it is especially 



196 JUSTICE. 

in the nature of women., as a concomitant of their maternal 
functions, to yield benefits not in proportion to deserts but 
in proportion to the absence of deserts — to give most where 
capacity is least. The love of the helpless, which may 
serve as a general description of the parental instinct, 
stronger in women than in men, and swaying their conduct 
outside the family as well as inside more than it sways the 
conduct of men, must in a still greater degree than in men 
prompt public actions that are unduly regardful of the 
inferior as compared with the superior. The present 
tendency of both sexes is to contemplate citizens as having 
claims in proportion to their needs — their needs being 
habitually proportionate to their demerits; and this ten- 
dency, stronger in women than in men, must, if it operates 
politically, cause a more general fostering of the worse 
at the expense of the better. Instead of that maintenance 
of rights which, as we have seen, is but a systematic enforce- 
ment of the principle that each shall receive the good and 
evil results of his own conduct, there would come greater 
and more numerous breaches of them than at present. 
Still more than now would the good which the superior 
have earned be forcibly taken away from them to help 
the inferior; and still more than now would evils which 
the inferior have brought upon themselves be shouldered 
on to the superior. 

Another trait of nature by which women are distin- 
guished, arises by adjustment, not to the maternal relation 
but to the marital relation. While their feelings have 
become moulded into special fitness for dealing with 
offspring, they have also become adjusted to an appro- 
priate choice of husbands — so far at least as conditions 
have allowed them to choose. Power, bodily or mental, or 
both, is, and ever has been, that masculine trait which 
most attracts women ; and by doing so furthers multipli- 
cation to the stronger. Varieties in which this instinctive 
preference was least marked must, other things equal, have 



THE CONSTITUTION OF THE STATE. 197 

ever tended to disappear before other varieties. Hence in 
women a worship of power under all its forms ; and hence a 
relative conservatism. Authority, no matter how embodied 
— politically, ecclesiastically, or socially — sways women still 
more than it sways men. Evidence of this is furnished 
by societies of all grades. Sanctified by the injunctions 
of ancestry, customs are adhered to by women more than 
by men, even where instinctive feelings might have been 
expected to produce an opposite effect; as instance the 
adhesion by the women among the Juangs to something less 
than Eve's dress after the men had taken to loin-cloths. 
Eeligious fanaticism, which is the expression of extreme 
subordination to a power conceived as supernatural, has 
always been carried further by women than by men. The 
difference was remarked among the Greeks ; observers 
have noticed it in Japan; instances are supplied by the 
Hindoos ; and it is at present manifest throughout Europe. 
This sentiment, then, which power and the trappings of 
power under all forms excite, must, if votes were given to 
women, strengthen all authorities, political and ecclesiastical. 
Possibly it may be thought that under present conditions a 
conservative influence of this kind would be beneficial ; and 
did there not exist the trait above described, this might be 
so. But co-operating with the preference for generosity 
over justice, this power-worship in women, if allowed fuller 
expression, would increase the ability of public agencies 
to override individual rights in the pursuit of what were 
thought beneficent ends. 

Whether in time to come, when the existing political 
complications caused by our transitional state have dis- 
appeared, such evils would result, is another question. It 
is quite possible that the possession of votes by women 
would then be beneficial. 

But the immediate enfranchisement of women is urged 
on the ground that without it they cannot obtain legal 
recognition of their equitable claims. Experience does not 



198 JUSTICE. 

countenance this plea. During the last thirty years various 
disabilities of women have been removed with but little 
resistance from men. Comparing the behaviour of men to 
men with the behaviour of men to women, it is manifest 
that in modern times the sentiment of justice has been 
more operative in determining the last than in determining 
the first. Ill-treated classes of men have had to struggle 
far longer before they obtained from the classes who ill- 
treated them, the concessions they demanded, than women 
as a class have had to struggle before obtaining from men 
as a class, the various freedoms they asked. They have 
obtained these without political power; and there is no 
reason to doubt that such further injustice as they complain 
of — chiefly in respect of the custody of children — -may be 
similarly removed without making the gigantic constitu- 
tional change which some of them seek. 

That this probability amounts, indeed, to certainty, will be 
manifest if we look at the expectations in their simplest 
form. When it is openly contended that women must have 
the suffrage because otherwise they cannot get from men 
their just claims, it is practically contended that men will 
concede the suffrage knowing that with it they concede 
these claims, but will not concede the claims by themselves. 
A, the suffrage, involves the establishment of B, the claims ; 
and the proposition is that though men will surrender A 
plus B, they will not surrender B by itself ! 

§ 109. Under the head of the constitution of the State, 
something must be said concerning the distribution of 
State-burdens as well as the distribution of State-power. 
Clearly there is as much reason for insisting on equitable 
sharing in the costs of government as for equitable sharing 
in the direction of government. 

In the abstract the question does not appear to present 
any great difficulty. The amounts individually paid should 
be proportionate to the benefits individually received. So 



THE CONSTITUTION OF THE STATE. 199 

far as these are alike, the burdens borne should be alike ; 
and so far as they are unlike, the burdens borne should be 
unlike. Hence arises a distinction between the public 
expenditure for protection of persons and the public 
expenditure for protection of property. As life and personal 
safety are, speaking generally, held equally valuable by all 
men, the implication appears to be that such public expen- 
diture as is entailed by care of these should fall equally 
on all. On the other hand, as the amounts of property 
possessed at the one extreme by the wage-earner and at 
the other extreme by the millionaire differ immensely, the 
implication is that the amounts contributed to the costs of 
maintaining property-rights should vary immensely — should 
be proportionate to the amount of property owned, and vary 
to some extent according to its kind. In respect to the 
costs of internal protection an approximately just distri- 
bution seems indicated by these considerations; but in 
respect of external protection a just distribution is more 
difficult to conceive. Invasion endangers both property 
and person. The citizen may be robbed, or he may be 
injured in body, or he may lose more or less freedom. A 
just distribution depends on the relative values put by each 
on these ; and no expression of such values, either special or 
general, seems possible. Hence we must say that while 
militancy, or partial militancy, continues, nothing more than 
a rude approximation to a just incidence of public burdens 
can be made. 

One conclusion, however, is clear. State-burdens, how- 
ever proportioned among citizens, should be borne by all. 
Every one who receives the benefits which government 
gives should pay some share of the costs of government, 
and should directly and not indirectly pay it. 

This last requirement is all-important. The aim of the 
politician commonly is to raise public funds in such ways 
as shall leave the citizen partly or wholly unconscious of 
the deductions made from his income. Customs duties and 



200 JUSTICE. 

excise duties are not unfrequently advocated for the reason 
that through them it is possible to draw from a people a 
larger revenue than could be drawn were the amount con- 
tributed by each demanded from him by the tax-gatherer. 
But this system, being one which takes furtively sums 
which it would be difficult to get openly, achieves an end 
which should not be achieved. The resistance to taxation, 
thus evaded, is a wholesome resistance ; and, if not evaded, 
would put a proper check on public expenditure. Had 
each citizen to pay in a visible and tangible form his 
proportion of taxes, the sum would be so large that all 
would insist on economy in the performance of necessary 
functions and would resist the assumption of unnecessary 
functions; whereas at present, offered as each citizen is 
certain benefits for which he is unconscious of paying, 
he is tempted to approve of extravagance ; and is prompted 
to take the course, unknowingly if not knowingly dishonest, 
of obtaining benefits at other men's expense. 

During the days when extensions of the franchise were 
in agitation, a maxim perpetually repeated was — -" Taxation 
without representation is robbery." Experience has since 
made it clear that, on the other hand, representation without 
taxation entails robbery. 



CHAPTER XXV. 

THE DUTIES OF THE STATE. 

§ 110. Whether or not they accept the ethical prin- 
ciples set forth in the opening chapters of this part, most 
readers will agree with the practical applications of them 
made in subsequent chapters. Some, indeed, are so averse 
to deductive reasoning that they would gladly reject its 
results, even though they are verified by induction, could 
they do so. But the results in this case reached deductively, 
have one after another proved to be beliefs empirically 
established among civilized men at large, and, with in- 
creasing experience, have been more and more authorita- 
tively formulated in law; so that rejection is scarcely 
practicable. 

But here we are about to enter on topics concerning 
which there are divers opinions. To avoid raising prejudices 
against the conclusions reached, as being reached by a 
disapproved method, it will be best to proceed by a method 
which cannot be disapproved; and which, however in- 
sufficient taken by itself, all must admit to be good as 
far as it goes. Let us, then, commence inductively our 
inquiries concerning the duties of the State. 

If the admired philosopher Hobbes, instead of deducing 
his theory of the State from a pure fiction, had prepared 
himself by ascertaining the facts as they are actually 



202 JUSTICE. 

presented in groups of primitive men, or men in the first 
stages of social life, he never would have propounded it. 
Had he known something more of savages as they really 
exist, he would not have ascribed to them those ideas of 
social order and its benefits, which are the products of 
developed social life ; and he would have learnt that sub- 
ordination to a ruling power is at the outset not in the 
least prompted by the motive he assigns. Instead of pro- 
ceeding a priori as he did, let us proceed a posteriori — let 
us contemplate the evidence. 

§ 111. The first fact is that where there neither is, nor 
has been, any war there is no government. Already it has 
been pointed out that among the Esquimaux, in the absence 
of inter-tribal conflicts, there are scarcely any of those con- 
flicts between members of the tribe which Hobbes assumes 
must necessarily arise among ungoverned men. If, as 
occasionally happens, one Esquimo is ill-used by another, 
his remedy is an appeal to public opinion through a 
satirical song. The Fuegians, who gather in tribes of from 
twenty to eighty, have no chiefs ; { ' nor did they seem to 
require one for the peace of their society," says Weddell. 
Of the Yeddahs, again, we read that the small clans have 
divisions of the forest which "are always honourably 
recognized;" and the head man of each, who is simply the 
most influential person, according to Tennant, " exercises no 
sort of authority beyond distributing at a particular season 
the honey captured by the various members of the clan." 

The second fact is that when between tribes ordinarily 
peaceful there occur wars, leading warriors acquire pre- 
dominant influence. In each case there arises some man 
distinguished from others by greater strength, courage, 
skill or sagacity; and who, consequently deferred to, 
becomes acknowledged leader. But at first, as shown us 
by the Tasmanians, the man who thus acquires predo- 
minance during war, loses it when peace is re-established : 



THE DUTIES OP THE STATE. 203 

there returns the state of equality and absence of govern- 
ment. As, however, the wars between tribes commonly 
become chronic, it usually happens that the man who acts 
as leader, now in one war and presently in another, gains 
permanent authority. The deference shown to him extends 
over the interval between the wars, as well as during the 
the wars; and chieftainship is initiated. The Shoshones or 
Snakes of North America, which fall into three divisions, 
well illustrate these relationships of structure. The 
Mountain Snakes, scattered and wandering bands of men, 
who make no combined efforts to defend themselves against 
their hostile kindred, have no government. Among the 
"War-are-aree-kas, or Fish-eaters, there is no trace of social 
organization, "except during salmon-time;" when, resorting 
to the rivers in numbers, there arises temporarily " some 
person called a chief," whose advice is accepted rather than 
obeyed. And then the Shirry- dikas, who hunt buffaloes 
and are better armed, show us more pronounced chieftain- 
ship ; though authority still depends on " the personal 
vigour of the chief" and is readily transferred to another. 
Among the Comanches, who are relatively warlike, chiefs 
have more power ; though the office is not hereditary, but 
results from " superior cunning, knowledge, or success in 
war." And from these stages upwards we may trace the 
rise of definite chieftainship as a concomitant of chronic 
hostilities with other tribes. 

The third fact is that where the enterprising leader in 
war subdues adjacent tribes, and, by successive conquests, 
forms a larger consolidated society, his supremacy becomes 
settled ; and with increase of his power goes the imposing 
of his will in other than militant actions. When, by this 
process, nations are formed and chiefs grow into kings 
governmental power, becoming absolute, becomes also co- 
extensive with social life. Still it is to be observed that 
the king is above all things the leader in war. The records 
of the Egyptians and Assyrians, equally with the records 



204 JUSTICE. 

of European nations, show that the ruler is primarily the 
head soldier. 

And then, grouping several minor facts under the head 
of a fourth fact, we see that where, as in modern nations, 
the head of the* State no longer commands his armies in 
battle, but deputes this function, he nevertheless is nominally 
a soldier — receives a military or naval education. Only in 
republics do there arise civil headships, and these are apt 
to lapse back into military ones. It needs only continued 
war to transform the government into its primitive type of 
a military dictatorship. 

Thus induction puts beyond doubt the truth that govern- 
ment is initiated and developed by the defensive and 
offensive actions of a society against other societies. The 
primary function of the State, or of that agency in which 
the powers of the State are centralized, is the function of 
directing the combined actions of the incorporated indi- 
viduals in war. The first duty of the ruling agency is 
national defence. What we may consider as measures to 
maintain inter-tribal justice, are more imperative, and come 
earlier, than measures to maintain justice among individuals. 

§ 1]2. While are we thus taught that the subordination 
of citizens to rulers has at first no such purpose as that which 
Hobbes fancied, we are also taught that for a long time the 
fulfilment of such purpose is not even attempted. Many 
simple societies exist permanently, and many complex 
societies have existed for long periods, without any 
measures being taken by the ruler to prevent aggressions 
of individuals on one another. 

While the necessity for combined action against enemies of 
the tribe is obvious and peremptory, and prompts obedience 
to the leader, no obvious necessity exists for defending one 
member of the tribe against another : danger to tribal 
welfare is either not recognized or not thought great 
enough to call for interference. While there was no 



THE DUTIES OP THE STATE. 205 

headship at all, and during times when headship existed 
only as long as war lasted, each member of the tribe 
maintained his own claims as well as he could : when 
injured, he did his best to injure the aggressor. This rude 
administration of justice, which we see among gregarious 
animals as well as among primitive hordes of men, having 
been a recognized custom before any political rule existed, 
long survived the establishment of political rule, as being a 
custom accepted from ancestry and sanctified by tradition. 
Hence in all early societies we find the lex talionis in force 
— now independently of the ruler, and now recognized by 
the ruler. 

Beginning with the North American Indians we read of 
the Snakes, the Creeks, the Dacotahs, that private wrongs 
were avenged by the injured individuals or their families ; 
that among the Comanches this system of retaliation was 
habitual, though councils sometimes interfered without 
success ; and that among the Iroquois, with a comparatively 
well-developed government, the private righting of wrongs 
was permitted. So in South America, the Uaupes, the 
Patagonians, the Araucanians may be named as showing us 
degrees, more or less marked, of political subjection co- 
existing with primitive administration of justice by each man 
for himself, or by his family for him. In Africa, containing 
peoples in various stages of advance, we meet with various 
mixtures of systems. A Bechuanas king or chief makes 
little use of his power for punishment of any other crimes 
than those committed against himself or his servants. An 
injured man among the East Africans sometimes revenges 
himself and sometimes appeals to the chief. Some tribes 
of Coast Negroes have judicial punishments, while in 
others murder is avenged by deceased's kindred; and there 
is a like variation in Abyssinia. Turning to Asiatics, we 
find that among the Arabs the prevalence of one or other 
of these modes of checking aggressions, depends on the 
state of the group as wandering or settled : where wan- 



206 JUSTICE. 

dering, private retaliation and enforced restitution is the 
practice, but punishment by a ruler is usual in Arab towns. 
By the Bheels is shown a ratio between the chief's punitive 
action and that of the individual, which changes according 
to the chief's power; and by the Khonds, who pay little 
respect to authority, justice is enforced by private action. 
The custom of the Karens, too, is for each man to take 
the law into his own hands : the principle being that of 
equal damage. 

That kindred states of things existed among the Aryan 
tribes which peopled Europe in early days, is a familiar fact. 
Private vengeance and public punishment were mingled in 
various proportions : the one decreasing and the other 
increasing along with progress to a higher state. Says 
Kemble : — " The right of feud . . . lies at the root of all 
Teutonic legislation . . . each freeman is at liberty to 
defend himself, his family and his friends ; to avenge all 
wrongs done to them." Instead of being, as at first, his 
own judge respecting the extent of retaliation, the injured 
man presently came to have restraints put upon him by 
custom; and there grew up established rates of compen- 
sation for injuries, varying according to rank. When 
political authority gained strength, the first step was 
that of enforcing the customary fines, and, in default, 
permitting private rectification — " Let amends be made 
to the kindred, or let their war be borne." During this 
transitional stage, which is traceable among some of the 
German tribes when first described, part of the com- 
pensation went to the man or family injured, while part 
went to the ruler. Under feudalism the system of private 
rectification of wrongs slowly yielded to the public recti- 
fication only as the central government gained power. 
The right of private war between nobles continued among 
ourselves down to the 12th and 13th centuries, and in 
France even later. So deeply rooted was it that in some 
cases, feudal lords thought it a disgrace to maintain their 



THE DUTIES OP THE STATE. 207 

rights in any other ways than by force of arms. With 
all which we must join the long survival of judicial duels 
and of private duels. 

The facts have to be contemplated under two other 
aspects. Not only is the primary function of government 
that of combining the actions of the incorporated indi- 
viduals for war, while its secondary function of defending 
its component members against one another is step by step 
established ; but this secondary function arises by differen- 
tiation from the primary one. Even in the earliest stages 
the private rectification of wrongs is in part the business of 
the individual wronged and in part the business of his 
family or relatives. The progress which brings develop- 
ment of the family organization, at the same time that 
it brings aggregation of clusters of families or clans into 
a society, develops the doctrine of family responsibility. 
That is to say, the private wars between family-groups 
come to be of the same nature as the public wars between 
societies; and the enforcement of private justice is akin 
to the enforcement of inter-tribal justice. Hence arises the 
idea, which seems to us so strange, that if, when a member 
of one group has been murdered, a member of the group to 
which the murderer belongs is killed, it is indifferent 
whether the victim be the murderer or not. The group 
is injured to an equivalent extent, and that is the essential 
requirement. 

The other noticeable aspect of the facts is that this rude 
enforcing of justice by private wars, is changed into public 
administration of justice, not because of the ruler's solicitude 
to maintain equitable relations, but much more because of 
his solicitude to prevent that weakening of his society 
which internal dissensions must produce. Be he primitive 
chief, or be he captain of banditti, a leader must check 
fights among his followers ; and what is by these shown on 
a small scale was shown on a larger scale when, in feudal 
times, kings forbad private wars between nobles during the 



208 JUSTICE. 

times when international wars were going on. Manifestly 
a king's desire to maintain a social order which conduces 
to fighting efficiency, prompts the practice of arbitrating 
between antagonist followers; and manifestly appeals 
made to him by the injured, recognizing as they do his 
authority, and responded to for this reason, tend more and 
more to establish his judicial and legislative powers. 

Once established, this secondary function of the State 
goes on developing; and becomes a function next in 
importance to the function of protecting against external 
enemies. The truth to be specially emphasized here, is 
that while other kinds of governmental action diminish, 
this kind of governmental action increases. Militant 
activities may become gradually less, and political agency 
may retire from various regulative actions previously exer- 
cised over citizens. But with the progress of civilization, 
the administration of justice continues to extend and to 
become more efficient. 

§ 113. And now, having reached these conclusions 
inductively, let us see whether corresponding conclusions 
cannot be reached deductively. Let us see whether from 
the natures of men as socially conditioned, it is not inferable 
that these two State-duties are the essential ones. 

At the outset it was shown that the prosperity of a species 
is achieved by conformity to two opposite principles, appro- 
priate to the young and to the adult respectively : benefits 
being inversely proportioned to worth in the one case and 
directly proportioned to worth in the other. Confining our 
attention to the last of these principles, which now alone 
concerns us, it is clear that maintenance of those conditions 
under each one's efforts bring their due rewards is, in the 
case of a society, liable to be traversed by external foes and 
by internal foes. The implication is that for the prosperity 
of a species, or in this case of a society, these conditions 
must be maintained by a due exercise of force; and for the 



THE DUTIES OP THE STATE. 209 

exercise of sucli force the corporate action of the society is 
demanded — -imperatively in the one case and with some- 
thing approaching to imperativeness in the other. To such 
exercise of force, citizens at large (excluding criminals) 
have good reasons to assent. Observe their motives. 

Such contingent loss of life and partial loss of liberty as 
are entailed on soldiers, and such deductions from their 
earnings as other citizens have to contribute to support 
soldiers, are felt by each to be justified as instrumental to 
the supreme end of enabling him to carry on his activities 
and to retain the reward for them — sacrifice of a part to 
ensure the remainder. Hence he tacitly authorizes the 
required State-coercion. 

Though the need for corporate guardianship against 
internal foes is less urgently felt, yet from the pursuit of 
his ends by each there arises a resultant desire for such 
guardianship. As in every community the relatively-strong 
are few, and the relatively- weak are many, it happens 
that in the majority of cases purely private rectification 
of wrongs is impracticable. If beyond the aid of family 
and friends, often inadequate, there can be obtained the 
aid of some one more powerful, it is worth buying — at 
first by a bribe, and presently by tribute. Eventually, 
all find it answer best to pay for security rather than 
suffer aggressions. 

Thus these primary and secondary duties of the State are 
implied by those fundamental needs which associated men 
experience. They severally desire to live, to carry on their 
activities, and reap the benefits of them. All have motives 
to maintain against external enemies the conditions under 
which these ends may be achieved, and all, save aggressors 
of one or other kind, have motives to maintain these con- 
ditions against internal enemies. Hence at once the duty 
of the State and the authority of the State. 

§ 114. If these duties devolve upon the State, then the 
10 



210 JUSTICE. 

State is under obligation to take such measures as are 
needful for efficiently discharging them. 

That defensive appliances sufficient to meet imminent 
dangers must be provided, every one admits. Even where 
no attack by foreign foes seems likely, there should be 
maintained adequate forces to repel invasion ; since total 
unpreparedness may invite attack. Though in this part of 
the world, and in our days, descents made without excuse by 
plundering hordes may not have to be guarded against ; yet 
the readiness shown by peoples called civilized to hurl large 
armies upon one another with but small provocation, makes 
it manifest that even the most advanced nations cannot 
prudently trust their neighbours. What amount of military 
power is needful for safeguarding, of course depends on 
circumstances, and is a matter of judgment in each case. 

But while the need for maintaining such an organization 
as is requisite for duly discharging the first duty of the 
State is fully recognized, the need for maintaining such an 
organization as is requisite for duly discharging its second 
duty is far from fully recognized. As we have seen above, the 
defence of citizens one against another, not at first a business 
of the government, has been undertaken by it but gradually ; 
and even in the most civilized societies its discharge of this 
business is still but partial, and the propriety of full dis- 
charge of it is denied. I do not of course mean that the 
responsibility of the State for guarding citizens against 
offenders classed as criminal, is not admitted and fulfilled ; 
but I mean that the State neither admits, nor is supposed 
by citizens to have, any responsibility for guarding them 
against offenders classed as civil. Though, if one who 
receives a rude push invokes the agents of the State, they 
will take up his case and punish the assailant; yet if he 
is defrauded of an estate they turn deaf ears to his com- 
plaint, and leave him either to bear the loss, or run the risk 
of further and perhaps greater loss in carrying on a suit and 
possibly appeals. 



THE DUTIES OP THE STATE. 211 

Not by lawyers only, but by most other people this con- 
dition of things is defended ; and the proposition that it is 
the duty of the State to administer justice without cost, in 
civil as well as in criminal cases, is ridiculed : as, indeed, 
every more equitable arrangement is ridiculed before 
successful establishment of it proves its propriety. It is 
argued that did the State arbitrate between men gratis, the 
courts would be so choked with cases as to defeat the end 
by delay : to say nothing of the immense expense entailed 
on the country. But this objection proceeds upon the 
vicious assumption that while one thing is changed other 
things remain the same. It is supposed that if justice were 
certain and could be had without cost, the number of tres- 
passes would be as great as now when it is uncertain and 
expensive ! The truth is that the immense majority of civil 
offences are consequent on the inefficient administration of 
justice — would never have been committed had the penalties 
been certain. 

But when we come to contemplate it, it is a marvellous 
proposition, this which the objection implies, that multi- 
tudinous citizens should be left to bear their civil wrongs in 
silence or risk ruin in trying to get them rectified ; and all 
because the State, to which they have paid great sums in 
taxes, cannot be at the trouble and expense of defending 
them ! The public evil of discharging this function would 
be so great, that it is better for countless citizens to suffer the 
evils of impoverishment and many of them of bankruptcy ! 
Meanwhile, through the officers of its local agents, the State 
is careful to see that their stink-traps are in order ! 

§ 115. One further duty of the State, indirectly included 
in the last but distinguishable from it, must be set down, 
and its consequences specified. I refer to its duty in 
respect of the inhabited territory. 

For employments of the surface other than those already 



212 JUSTICE. 

established, and tacitly authorized by the community through 
its government, there require State - authorizations. As 
trustee for the nation the government has to decide whether 
a proposed undertaking — road, canal, railway, dock, &c. — 
which will so change some tract as to make it permanently 
useless for ordinary purposes, promises to be of such public 
utility as to warrant the alienation ; and has to fix the terms 
for its warrant : terms which, while they deal fairly with 
those who stake their capital in the enterprise, and while 
they protect the rights of the existing community, also 
keep in view the interests of future generations, who will 
hereafter be supreme owners of the territory. For the 
achievement of these several ends, the equitable arrange- 
ment would seem to be, not a permanent alienation of the 
required tract ; nor an unscrupulous breaking of the con- 
tract by the State at will, as now; but an alienation for a 
specified period, with the understanding that the conditions 
ma}^, at the termination of that period, be revised. 

In discharge of its duties as trustee, the ruling body has 
to exercise a further control — allied but different. If not 
itself, then by its local deputies, it has to forbid or allow the 
breaking up of streets, roads, and other public spaces for 
the establishment or repair of water, gas, telegraph, and 
kindred appliances. Such supervisions are required for 
protecting each and all members of the community 
against the aggressions of particular members or groups 
of members. 

That like considerations call for oversight by the State of 
rivers, lakes, or other inland waters, as also of the adjacent 
sea, is sufficiently clear. On the uses made of these and 
their contents, there may rightly be put such restraints as 
the interests of the supreme owner, the community, demand 

§ 116. And now what are these duties of the State con- 
sidered under their most general aspect? What has a 



THE DUTIES OP THE STATE. 213 

society in its corporate capacity to do for its members in 
their individual capacities ? The answer may be given in 
several ways. 

The prosperity of a species is best subserved when among 
adults each experiences the good and evil results of his own 
nature and consequent conduct. In a gregarious species 
fulfilment of this need implies that the individuals shall not 
so interfere with one another as to prevent the receipt by 
each of the benefits which his actions naturally bring to 
him, or transfer to others the evils which his actions 
naturally bring. This, which is the ultimate law of species 
life as qualified by social conditions, it is the business 
of the social aggregate, or incorporated body of citizens, 
to maintain. 

This essential requirement has to be maintained by all 
for each, because each cannot effectually maintain it for 
himself. He cannot by himself repel external invaders ; 
and on the average, his resistance to internal invaders, if 
made by himself or with the aid of a few, is either inefficient, 
or dangerous, or costly, or wasteful of time, or all of these. 
To which add that universal self-defence implies chronic 
antagonisms, either preventing or greatly impeding co- 
operation and the facilitations to life which it brings. 
Hence, in distinguishing between things to be done by 
corporate action and things to be done by individual 
action, it is clear that, whether or not it does anything 
else, corporate action may rightly be used to prevent 
interferences with individual action beyond such as 
the social state itself necessitates. 

Each citizen wants to live, and to live as fully as his j 
surroundings permit. This being the desire of all, it results 
that all, exercising joint control, are interested in seeing that i 
while each does not suffer from breach of the relation \ 
between acts and ends in his own person, he shall not 
break those relations in the persons of others. The 
incorporated mass of citizens has to maintain the conditions 



214 JUSTICE. 

under which each may gain the fullest life compatible with 
the fullest lives of fellow citizens. 

Whether the State has other duties is a question which 
remains now to be discussed. Between these essential 
functions and all other functions there is a division which, 
though it cannot in all cases be drawn with precision, is yet 
broadly marked. To maintain intact the conditions under 
which life may be carried on is a business fundamentally 
distinct from the business of interfering with the carrying 
on of the life itself, either by helping the individual or 
directing him, or restraining him. We will first inquire 
whether equity permits the State to undertake this further 
business ; and we will then inquire whether considerations 
of policy coincide with considerations of equity. 



CHAPTER XXVI. 

THE LIMITS OF STATE-DUTIES. 

§ 117. During those early stages in which the Family 
and the State were not differentiated, there naturally arose 
the theory of paternal government. The members of the 
group were " held together by common obedience to their 
highest living ascendant, the father, grandfather, or great- 
grandfather ." Ignoring those still earlier social groups of 
which Sir Henry Maine takes no account, we may accept 
his generalization that among Aryan and Semitic peoples, 
the despotic power of the father over his children, surviving 
more or less as his children became heads of families, and 
as again their children did the same, gave a general cha- 
racter to the control exercised over all members of the 
group. The idea of government thus arising, inevitably 
entered into the idea of government which became estab- 
lished as compound families grew into communities ; and it 
survived when many of such small communities, not allied 
in blood or but remotely allied, became consolidated into 
larger societies. 

The theory of paternal government originating in this way 
is a theory which tacitly asserts the propriety of unlimited 
government. The despotic control of the father extends to 
all acts of his children; and the patriarchal government 
growing out of it, naturally came to be exercised over the 
entire lives of those who were subject. The stage was one 



216 JUSTICE. 

in which distinctions and limitations had not yet arisen; 
and while the group retained something like its original 
constitution, having in the main a common origin and 
holding in partial if not entire community the inhabited 
tract and its produce, the conception of government as 
unlimited in range was probably one best adapted to 
the requirements. 

But this ancient social idea, like ancient religious ideas, 
survives, or continually re-appears, under conditions utterly 
unlike those to which it was appropriate. The notion of 
paternal government is entertained in a vague sentimental 
way, without any attempt being made definitely to conceive 
its meaning; and consequently without any perception of 
the inapplicability of the notion to developed societies. 
For none of the traits of paternal government as it origin- 
ally arose, exists now, or is possible. Observe the contrasts. 

Fatherhood habitually implies ownership of the means 
by which children and dependents are supported; and 
something like such ownership continued under the patri- 
archal form of rule. But in developed nations not only is 
this trait absent, but the opposite trait is present. The 
governing agent does not now support those over whom 
t exercises authority, but those over whom it exercises 
authority support the governing agent. Under paternal 
rule, truly so called, the possessor of the power, being 
possessor of everything else, was benefactor to his children 
as well as controller of them ; whereas a modern govern- 
ment, along with a power which is in chief measure given 
by those who are supposed to stand in the place of children, 
cannot be in such sense a benefactor, but has to receive 
from the children the means which enable it to do anything 
for them. Again, in simple and compound family-groups 
there is an approach to identity of interests between rulers 
and ruled : the bonds of blood-relationship go far to insure 
a regulative action conducive to the general welfare. But 
in advanced societies there enter into the political relations 



THE LIMITS OP STATE-DUTIES. 217 

no such emotions as those arising from family feeling 
and kinship, which serve to check the self-seeking of the 
ruling agent, be it king, oligarchy, or such democratic 
body as the United States show us. Once more, the sup- 
posed parallel fails in respect of knowledge and wisdom. 
With the primitive paternal power, and the patriarchal 
power derived from it, there generally went wider expe- 
rience and deeper insight than were possessed by the 
descendants who were ruled. But in developed societies 
no such contrast exists between the mental superiority of 
those supposed to stand in the position of father, and the 
mental inferiority of those supposed to stand in the posi- 
tion of children. Contrariwise, among those figuratively 
spoken of as children, there exist many who are at once 
better informed and intellectually stronger than the ruling- 
head, single or multiple, as the case may be. And where, 
the head being multiple, the so-called children have to 
choose from among themselves those who shall constitute 
it, they habitually ignore the best-fitted : the result being 
that rule is exercised not so much by the collective wisdom 
as by the collective folly — the paternal and filial relation is 
in another way reversed. 

Hence that theory of the functions of the State which is 
based on this assumed parallelism is utterly false. The 
only justification for the analogy between parent and child 
and government and people is the childishness of the people 
who entertain the analogy. 

§ 1 18. A conception of State-duties which is connate with 
the last but gradually diverges from it, must next be 
noticed. I refer to the conception generated by experiences 
of those governmental actions needful for carrying on wars, 
which, up to recent times, have been its chief actions. 

In social groups of types preceding the patriarchal, 
headship becomes established by frequent wars; and in 
the patriarchal group the head of the warriors is ordinarily 



218 JUSTICE. 

head of the State. This identity, continuing through sub- 
sequent stages, determines the nature of government at 
large. That men may be good soldiers they must not only 
be subordinate, grade under grade, and must not only be 
drilled in warlike exercises, but must have their daily 
habits regulated in ways conducive to efficiency. More 
than this : the soldier-king, regarding the whole com- 
munity as a body from which soldiers and supplies are to 
be drawn, extends his control over the entire lives of his 
subjects. And since nations in general have been, as 
many of them still are, predominantly militant, this idea 
of governmental power, with its concomitant idea of the 
duties of the State, has been almost universal. 

In the most militant of Greek States, Sparta, preparation 
for war was the business of life, and the whole of life was 
regulated with a view to this preparation. Though in 
Athens no such strenuous efforts to achieve this end were 
made, yet there was a recognition of this end as the pre- 
dominant one. Plato's ideal republic was one in which, 
by education, citizens were to be moulded into fitness for 
social requirements, of which the chief was national defence; 
and this power of the incorporated community over its 
units was to go to the extent of regulating the procreation 
of them, both by selection of parents and by due adjustment 
of their ages. So, too, in Aristotle's Politics, it is urged 
that education should be taken out of the charge of parents, 
and that the different classes of citizens, differently educated, 
should be respectively adapted to public needs : authority 
being also assigned to the legislator to regulate marriage 
and the begetting of children. Thus the conception of 
governmental functions developed by militancy, and appro- 
priate to a fighting body, becomes the conception of 
governmental functions at large. 

Here, as before, we see that ideas, sentiments, and habits 
appropriate to early stages of development survive through- 
out later stages, to which they are no longer appropriate ; 



THE LIMITS OP STATE-DUTIES. 219 

and pervert the prevailing 1 beliefs and actions. For by 
many the conception of State-duties that was fit for Greek 
societies, is supposed to be fit for modern societies. Though 
the best social organization as conceived by Socrates and 
approved by Plato, was one in which the industrial classes 
were to be absolutely subject to the classes above them — 
though, in his Politics, Aristotle, regarding the family as 
normally consisting of freemen and slaves, taught that in 
the best-regulated States no mechanic should be a citizen, 
and that all tillers of the ground should be serfs ; yet it 
is believed that we may with advantage adopt the accom- 
panying theory of State-duties ! One whose conceptions of 
right and wrong were shown in the belief that it is impos- 
sible for a man who lives the life of a mechanic or hired- 
servant to practise virtue, is supposed to be one to whose 
conceptions of right and wrong in social affairs we may 
wisely defer ! It is thought that the ideas appropriate to 
a society organized throughout on relations of status, are 
adapted to a society organized throughout on relations of 
contract ! A political ethics belonging to a system of 
compulsory co-operation applies also to a system of 
voluntary co-operation ! 

§ 119. There is indeed the excuse that to some extent 
among ourselves, and to a much larger extent among 
continental peoples, the militant life, potential when not 
actual, still forms so considerable, and in many cases so 
great, a part of the social life as to render these tradi- 
tional doctrines appropriate. 

Compromise between old and new, which has perpetually 
to be made in practice, has to be made also in theory; for 
this must, on the average, conform itself to practice. It is 
therefore out of the question that there can be generally 
entertained the belief that governmental action should be 
subject to certain imperative restraints. The doctrine that 
there is a limited sphere within which only State-control 



220 JUSTICE, 

may rightly be exercised, is a doctrine natural to the 
peaceful and industrial type of society when fully developed ; 
and is not natural either to the militant type or to types 
transitional between militancy and industrialism. Just 
relations between the community and its units cannot exist 
during times when the community and its units are jointly 
and severally committing injustices abroad. Men who hire 
themselves out to shoot other men to order, asking nothing 
about the equity of their cause, are not men by whom there 
can be established equitable social arrangements. While 
the nations of Europe are partitioning among themselves 
parts of the Earth inhabited by inferior peoples, with cynical 
indifference to the claims of these peoples, it is foolish to 
expect that in each of these nations the government can 
have so tender a regard for the claims of individuals as to 
be deterred by them from this or that apparently politic 
measure. So long as the power to make conquests abroad 
is supposed to give rights to the lands taken, there must 
of course persist at home the doctrine that an Act of 
Parliament can do anything — that the aggregate will may 
rightly impose itself on individual wills without any limit. 

It may indeed be contended with reason that under 
existing conditions belief in the unrestricted authority of 
the State is necessary. The tacit assumption that the con- 
trolling agency which a community appoints or accepts, is 
subject to no restraints, has the defence that without it 
there could not be ensured that combined action from time 
to time required for meeting emergencies. As in war lack 
of faith in a leader may be a cause of defeat, so in war 
scepticism respecting governmental authority may produce 
fatal hesitations and dissensions. So long, therefore, as 
the religion of enmity so largely qualifies the religion of 
amity, the doctrine of unlimited State-authority must prevail. 

§ 120. And now, having seen how the current conception 
of State-duties originated, and how it has survived into 



THE LIMITS OF STATE-DUTIES. 221 

modern conditions for which it is but partially adapted, 
we are the better prepared to entertain the true conception 
of State-duties. After recognizing the probability, if not 
the certainty, that a theory concerning the proper sphere 
of government which was fit for societies organized on 
the principle of compulsory co-operation, must be unfit for 
societies organized on the principle of voluntary co-opera- 
tion, we may proceed to ask what is the theory appropriate 
to these. 

Each nation constitutes a variety of the human race. 
The welfare of humanity at large will be achieved by the 
prosperity and spread of the best varieties. After there 
has ended the predatory stage of progress — after there has 
come the stage in which the competition among societies is 
carried on without violence, there will, other things equal, 
be an increasing predominance of societies which produce 
the greatest numbers of the best individuals. Production 
and maintenance of the best individuals is achieved by 
conformity to the law that each shall receive the good and 
evil results of his own nature and consequent conduct ; and 
in the social state, the conduct of each bringing to him these 
results, must be restrained within the limits imposed by 
the presence of others similarly carrying on actions and 
experiencing results. Hence, other things equal, the 
greatest prosperity and multiplication of efficient indi- 
viduals will occur where each is so constituted that he can 
fulfil the requirements of his own nature without inter- 
fering with the fulfilment of such requirements by others. 

What, then, becomes the duty of the society in its 
corporate capacity, that is, of the State ? Assuming that 
it is no longer called on to guard against external dangers, 
what does there remain which it is called on to do ? If the 
desideratum, alike for the individuals, for the society, and 
for the race, is that the individuals shall be such as can 
fulfil their several lives subject to the conditions named ; 
then it is for the society in its corporate capacity to insist 



222 justice. 

that these conditions shall be conformed to. Whether, in 
the absence of war, a government has or has not anything 
more to do than this, it is clear it has to do this. And, 
by implication, it is clear that it is not permissible to do 
anything which hinders the doing of this. 

Hence the question of limits becomes the question 
whether, beyond maintaining justice, the State can do any- 
thing else without transgressing justice. On consideration 
we shall find that it cannot. 

§ 121. For if the State goes beyond fulfilment of its 
duty as above specified, it must do this in one or both of 
two ways which severally or jointly reverse its duty. 

Of further actions it undertakes, one class comes under 
the definition of actions which restrain the freedom of 
some individuals more than is required by maintenance of 
the like freedom of other individuals; and such actions are 
themselves breaches of the law of equal freedom. If justice 
asserts the liberty of each limited only by the like liberties 
of all, then the imposing of any further limit is unjust ; no 
matter whether the power imposing it be one man or a 
million of men. As we have seen throughout this work, 
the general right formulated, and all the special rights 
deducible from it, do not exist by authority of the State ; 
but the State exists as a means of preserving them. Hence 
if, instead of preserving them, it trenches upon them, it 
commits wrongs instead of preventing wrongs. Though 
riot in every society, yet in our society, the killing of all 
infants which do not reach the standard of goodness 
required by public authority, would probably be regarded 
as murder, even though committed by many individuals 
instead of one ; and though not in early times, yet in our 
time, the tying of men to the lands they were born on, and 
the forbidding any other occupations than prescribed ones, 
would be considered as intolerable aggressions on their 
liberties. But if these larger inroads on their rights are 



THE LIMITS OF STATE-DUTIES. 223 

wrong, then also are smaller inroads . As we hold that a 
theft is a theft whether the amount stolen be a pound or a 
penny, so we must hold that an aggression is an aggression 
whether it be great or small. 

In the other class of cases the wrong is general and 
indirect, instead of being special and direct. Money- 
taken from the citizen, not to pay the costs of guarding 
from injury his person, property, and liberty, but to pay 
the costs of other actions to which he has given no 
assent, inflicts injury instead of preventing it. Names 
and customs veil so much the facts, that we do not com- 
monly see in a tax a diminution of freedom; and yet it 
clearly is one. The money taken represents so much labour 
gone through, and the product of that labour being taken 
away, either leaves the individual to go without such benefit 
as was achieved by it or else to go through more labour. In 
feudal days, when the subject-classes had, under the name 
of corveeSj to render services to their lords, specified in time 
or work, the partial slavery was manifest enough; and 
when the services were commuted for money, the relation 
remained the same in substance though changed in form. 
So is it now. Tax-payers are subject to a State- corvee, 
which is none the less decided because, instead of giving 
their special kinds of work, they give equivalent sums ; and 
if the corvee in its original undisguised form was a depriva- 
tion of freedom, so is it in its modern disguised form. 
" Thus much of your work shall be devoted, not to your 
own purposes, but to our purposes," say the authorities to 
the citizens ; and to whatever extent this is carried, to that 
extent the citizens become slaves of the government. 

" But they are slaves for their own advantage," will be 
the reply — "and the things to be done with the money 
taken from them are things which will in one way or other 
conduce to their welfare." Yes, that is the theory — a 
theory not quite in harmony with the vast mass of mis- 
chievous legislation filling the statute-books. But this 



224 justice. 

reply is not to the purpose. The question is a question 
of justice; and even supposing that the benefits to be 
obtained by these extra public expenditures were fairly 
distributed among all who furnish funds, which they are 
not, it would still remain true that they are at variance with 
the fundamental principle of an equitable social order. A 
man's liberties are none the less aggressed upon because 
those who coerce him do so in the belief that he will 
be benefited. In thus imposing by force their wills upon 
his will, they are breaking the law of equal freedom in 
his person; and what the motive may be matters not. 
Aggression which is flagitious when committed by one is 
not sanctified when committed by a host. 

Doubtless most persons will read with astonishment this 
denial of unrestricted State-power, and this tacit assertion 
that the State commits an offence when it exceeds the 
prescribed limits. In all places and times the beliefs 
which accompany the established institutions and habits, 
seem to those who hold them uncontrovertible. The fury 
of religious persecution has everywhere had behind it the 
conviction that dissent from the current creed implied 
deliberate wickedness or demoniacal possession. It was 
thought monstrous to question the authority of the Church 
in days when the Pope was supreme over kings ; and at 
the present time, in parts of Africa, how monstrous it is 
thought to reject the local creed is shown by the remark 
concerning disbelieving Europeans — "What fools these 
white men are ! " So has it been politically. As in Fiji 
where, until recently, a man stood unbound to be killed, 
himself declaring that "whatever the king says must be 
done/' it was held impossible to doubt the unbounded 
power of the ruling man — as throughout Europe, while 
the doctrine of the divine right of kings was universally 
accepted, the assertion that the many ought not to obey 
the one was regarded by nearly all as the worst of crimes — 
as, even but a century ago, a Church-and-King mob were 



. THE LIMITS OP STATE-DUTIES. . 225 

ready to take tlie life of a preacher who publicly dissented 
from the established forms of government, political and 
ecclesiastical ; so is it in a measure even still. One who 
denies the unlimited authority of the State is sure to be 
regarded by men at large as a fool or a fanatic. Instead 
of that te divinity which doth hedge a king," we have now 
the divinity which doth hedge a parliament. The many- 
headed government appointed by multitudes of ignorant 
people, which has replaced the single-headed government 
supposed to be appointed by heaven, claims, and is accorded, 
the same unrestricted powers. The sacred right of the 
majority, who are mostly stupid and ill-informed, to coerce 
the minority, often more intelligent and better-informed^ is 
supposed to extend to all commands whatever which the 
majority may issue ; and the rectitude of this arrangement 
is considered self-evident. 

Hence, just as among those who uphold the " sacred 
duty of blood-revenge," the injunction to forgive injuries 
is unlikely to meet with much acceptance ; so it is not to be 
expected that among party politicians, eagerly competing 
with one another to gain votes by promising State-aids of 
countless kinds, any attention will be paid to a doctrine of 
State-duties which excludes he great mass of their favourite 
schemes. But in face of all the contemptuous reprobation 
coming from them, it must still be asserted, as above, that 
their schemes are at variance with the fundamental principle 
of a harmonious social life. 

§ 122. Here, if kept strictly within its limits, this division 
of the Principles of Ethics should be brought to a close. 
Having seen what is the dictum of absolute ethics respecting 
the duties of the State, and having seen what qualifications 
are implied by that relative ethics which takes cognizance 
of the requirements generated by international aggres- 
siveness — having, further seen that during the transition 
between the militant and industrial forms of social life, an 



226 justice. 

unduly exalted conception of State-authority (which is 
natural and in large measure necessary) fosters a multi- 
plicity of unjust State-actions; there remains, from an 
ethical point of view, no more to be said. But it will be 
desirable here to devote some space to the proofs that 
these actions which are unjust in theory are also impolitic 
in practice. 

The subject is a vast one, and cannot of course be fully 
dealt with in the space available. It will not be practicable 
to do more than present in outline the various divisions of 
the argument, with such few illustrations as are needful to 
indicate their bearings. 

We will first deal with the State considered generally as 
an instrumentality, in contrast with other instrumentalities. 
We will examine next the assumption that it has a nature 
fitting it to remedy other evils than those entailed by 
aggression, external or internal. We will then consider 
the validity of the reasons for ascribing to it the duty and 
the power of achieving positive benefits. And we will 
end by inquiring whether the ultimate purpose — a higher 
development of human nature — is likely to be aided or 
hindered by its extended activities. 



Note. Eespecting the conclusions set forth in the 
following three chapters, it seems proper to say that their 
validity must not be measured solely by the evidence given, 
and the arguments used, in support of them. For the full 
vindication of these conclusions, and for the multitudinous 
facts which justify them, the reader is referred to various 
essays from time to time published, and now re-published 
in the library edition of my Essays. The titles of them 
are : — " Over-Legislation ; " " Representative Government 



THE LIMITS OF STATE-DUTIES. 227 

— What is it Good for ? " " State-Tamperings with Money 
and Banks ; " " The Collective Wisdom ; " " Political 
Fetishism ; " and " Specialized Administration." To these 
may be added sundry chapters forming the latter part of 
Social Statics, at present withdrawn from circulation, but 
selected portions of which I hope presently to re-publish. 



CHAPTER XXVII. 

THE LIMITS OF STATE-DUTIES CONTINUED. 

§ 123. We saw (in Chap. XXIII.) that at a later stage of 
evolution a society may acquire a nature fundamentally 
unlike the nature it had at an earler stage; and we drew the 
corollary that a theory of State-duties appropriate when ifc 
had one nature must be inappropriate when it has the other 
nature. Here we have to draw a further corollary. The 
implied change of nature absolves the State from various 
functions for which it was at first the best agent; and 
generates for these functions other and better agents. 

While war was the business of life, while militant 
organization was imperative, and while coercive rule was 
needful for disciplining improvident men and curbing their 
anti-social natures, agencies of a non-governmental kind 
could not develop. Citizens had neither the means, nor 
the experience, nor the characters, nor the ideas, needed 
for privately co-operating in extensive ways. Hence all 
large purposes devolved on the State. If roads had to be 
made, if canals had to be cut, if aqueducts had to be built, 
the only instrumentality was governmental power exercised 
over slaves. 

But with decline of militancy and rise of industrialism 
« — the decay of the system of status and growth of the 
system of contract — there have gradually become possible, 
and have gradually arisen, multitudinous voluntary asso- 



THE LIMITS OF STATE-DUTIES. 229 

ciations among citizens for discharging numerous kinds of 
functions. This result has been consequent on modifications 
of habits, dispositions, and modes of thought, which have 
been, generation after generation, produced by the daily 
exchange of services under agreement, in place of the daily 
enforcing of services. One result is that there can now be 
achieved without governmental power, various ends which 
in early days governmental power alone could achieve. 

In discussing the sphere of State-action we must take into 
account this profoundly significant fact. More than this: 
we must take into account a manifest inference. The 
changes above indicated are far from being ended; and we 
are justified in concluding that with further progress of 
them there may rightly go further relinquishment of 
functions which the State once discharged. 

§ 124. That such relinquishment of functions by the State, 
and assumption of them by other agencies, constitutes a pro- 
gress, should be manifest to all who know anything about the 
laws of organization ; though, unhappily, this truth seems no 
more appreciated by them than by those who began their 
school-days with making nonsense-verses and pass their 
mature years in pushing forward ad captandum legislation. 
For concerning individual organisms and social organisms, 
nothing is more certain than that advance from lower to 
higher, is marked by increasing heterogeneity of structures 
and increasing subdivision of functions. In both cases 
there is mutual dependence of parts, which becomes greater 
as the type becomes higher ; and while this implies a pro- 
gressing limitation of one function to one part, it implies 
also a progressing fitness of such part for such function. 

When, some fifty years ago, Milne Edwards gave to this 
principle of development in animals the name "physiological 
division of labour," he recognized the parallelism between 
vital economy and social economy ; and this parallelism has 
been since growing ever clearer. But though among the 



230 JUSTICE. 

cultured few, there is now some vague recognition of it; 
and though more especially the increasing division of 
labour which the industrial part of the social organism 
displays, has been made familiar by political economists, 
and the advantages of it duly insisted upon ; there is little 
or no perception of the truth that the principle holds also 
within the controlling part, and throughout its relations to 
the other parts. Even without the facts which illustrate it, 
we might be certain that specialization, with consequent 
limitation, normally takes place in the regulative structures 
of a society as in all its other structures ; that advantage is 
achieved by such specialization and limitation; and that 
any reverse change constitutes a retrogression. 

The implication is therefore the same as before. All- 
embracing State-functions characterize a low social type ; 
and progress to a higher social type is marked by relin- 
quishments of functions. 

§ 125. Most readers will feel little faith in these general 
conclusions. It will be needful to enforce them by argu- 
ments more readily appreciated. 

In § 5 I named the fact that the welfare of any living 
body depends on the due proportioning of its several parts 
to their several duties; and that the needful balance of 
power among the parts is effected by a constant competition 
for nutriment, and the flowing to each of a quantity 
corresponding to its work. That competition throughout 
the industrial parts of a society achieves a kindred balance 
in a kindred way, needs no proof ; and that social needs at 
large are best subserved by carrying out, wherever possible, 
this relation between effort and benefit, is manifest. 

Now in all those non-governmental co-operations consti- 
tuting the greater part of modern social life, this balancing 
is spontaneously effected. I need not dwell on the principle 
of supply and demand as displayed throughout our indus- 
trial organization; and I need not do more than hint that this 



THE LIMITS 01 STATE-DUTIES. 231 

same principle holds throughout all other non-governmental 
agencies — bodies for voluntary religious teaching, philan- 
thropic associations, trades unions. Among all such, activity 
and growth, or quiescence and decay, occur according as 
they do or do not fulfil wants that are felt. Nor is this all. 
A truth which cannot be too much emphasized is that under 
this stress of competition, each of these agencies is impelled 
to perform the greatest amount of function in return for a 
given amount of nutrition. Moreover, competition constantly 
impels it to improve ; to which end it not only utilizes the 
best appliances but is anxious to get the best men. The 
direct relation between efficiency and prosperity obliges all 
voluntary co-operations to work at high pressure. 

Contrariwise, the compulsory co-operations by w^hich 
governmental actions are effected, instead of direct relations 
between function and nutrition, show us highly indirect 
relations. Public departments, all of them regimented after 
the militant fashion, all supported by taxes forcibly taken, 
and severally responsible to their heads, mostly appointed 
for party reasons, are not immediately dependent for their 
means of living and growing on those whom they are 
designed to benefit. There is no fear of bankruptcy to 
prompt efficient and rapid performance of duty; there is no 
taking away of business by an opponent who does work 
more economically; there is no augmenting of profits by 
adopting improvements, still less by devising them. Every 
kind of defect results. As was lately said to me by one 
official concerning another, on whose remissness I was 
commenting — " Oh, he gets good pay and doesn't want to 
be bothered." In consequence of this indirectness of 
relation between benefits yielded and payments received, 
governmental agencies may continue to exist and draw 
funds for years, and sometimes for generations, after they 
have ceased to be of service; and when they are weak, 
or careless, or slow, the inefficiency has to be rectified by 
pressure exercised through the governmental machine — a 



232 justice. 

machine so cumbrous and complex that only great pressure 
exercised with great patience can effect the needful change. 

§ 126. Every day's papers thrust illustrations of these 
truths before the world, in relation even to those essential 
functions which we have no alternative but to devolve on 
the State. The ill-working of the appliances for national 
protection and individual protection is a ceaseless scandal. 

Army-administration is exemplified by the retention of a 
royal duke as commander-in-chief, by the multiplicity of 
generals made in satisfaction of class-interests, by promotion 
that- is only in small measure determined by merit. It is 
again exemplified by keeping our own officers in ignorance 
of improvements which foreign officers are allowed to see ; 
and by the repeated leaking out of secrets through employes 
in the arsenals. And it is yet again exemplified by the 
astounding disclosures respecting stores — bayonets that 
bend, swords that break, cartridges that jamb, shells of 
wrong sizes ; so that, as said by the Inquiry Commission of 
1887: — "The present system is directed to no definite 
object; it is regulated by no definite rules; it makes no 
regular stated provision, either for the proper supply and 
manufacture of warlike stores, or for enforcing the respon- 
sibility of those who fail to make them properly, or for 
ascertaining the fact that they are made improperly.-" 

That the Navy keeps the Army in countenance, complaint, 
inquiry, and exposure, continually remind us. All remember 
the story of the naval evolutions on the occasion of the 
Jubilee, when, without the stress of a sea-fight, more than 
a dozen vessels, great and small, came to grief in one way 
or other — collisions, explosions, breakdowns of engines, and 
so forth. And then there were the smaller but equally 
significant disasters which, in the same year, attended the 
cruise of 24 torpedo boats down channel and back ; during 
which 8 of the 24 were more or less disabled. Vessels that 
will not steer, guns that burst, ships that run aground, are 



THE LIMITS OF STATE-DUTIES. 233 

frequently reported ; and then, furnishing a significant 
contrast, when a first-class man-of-war, the Sultan, after 
running on a rock, sinks and is regarded by the Admiralty 
as lost, it is raised again and saved by a private company. 
To which add that the report concerning Admiralty-admin- 
istration issued in March, 1887, showed that " such manage- 
ment as is here disclosed would bring any commercial firm 
into the Bankruptcy Court in a few months. " 

Similarly is it with the making and administration of 
laws. So constant is the exposure of folly and failure, that 
the public sense of them is seared. In parliamentary 
procedure we meet with the extremes of utter recklessness 
and irrational carefulness : now a bill is hurried through 
all its stages without debate, and now, after careful con- 
sideration has delayed its enactment, it is dropped and has 
to pass through the whole process again next session. 
While we see the amending and re-amending of clauses 
aimed to meet every contingency, we see the whole Act 
when passed thrown on to the immense chaotic heap of 
preceding legislation, making its confusion worse con- 
founded. Complaint and denunciation lead to nothing. 
Here, in 1867, is the report of a commission formed of 
leading lawyers and statesmen — Cranworth, Westbury, 
Cairns, and others — urging the need for a digest as a 
preparation for a code; and urging that it is a national 
duty to provide citizens with a means of knowing the laws 
they have to conform to. Yet, though the question has 
been occasionally raised, nothing has been done — nothing, 
that is, by the State, but something by private individuals : 
Chitty's Equity Index and Sir James Stephen's Digest of 
the Criminal Law, have to some extent taught legislators 
what has been done by themselves and their predecessors. 
Then there is the fact, to the monstrosity of which custom 
blinds us, that even lawyers do not know what the bearings 
of a new Act are until judges have made decisions under it; 
while the judges themselves exclaim against the bungling 
11 



234 justice. 

legislation they have to interpret : one judge saying of a 
clause that he " did not believe its meaning was compre- 
hended either by the draughtsman who drew it" or "the 
parliament that adopted it," and another declaring that " it 
was impossible for human skill to find words more calcu- 
lated to puzzle everybody." As a natural consequence we 
have every day appeals and again appeals — decisions being 
reversed and re-reversed, and the poorer litigants being 
compelled to submit by the wealthier ones, who can ruin 
them by going from court to court. The incredible dis- 
proportion of sentences, too, is a daily scandal. Here a 
hungry harvester is sent to prison for eating a pennyworth 
of the field-beans he was cutting, as happened at Faversham; 
and there a rich man who has committed a violent assault 
has to pay a fine which to him is trivial. Still more 
disgraceful is the treatment of men charged with un- 
proved offences, and men who have been proved innocent: 
these being kept in prison for months before trials which 
show them to be guiltless, and those, after bearing long 
punishments before their innocence is shown, being granted 
"free pardons" and no compensation for inflicted sufferings 
and damaged lives. 

Even the smallest daily transaction— the paying of a 
cabman or the purchase of a neck-tie — serves to remind one 
of official bungling ; for how can it be better shown than 
by the coinage ? In this we have frequent changes where 
changes are undesirable. We have mixed systems : decimal, 
duodecimal, and nondescript. Until recently we had two 
scarcely-distinguishable pieces for threepence and four- 
pence; we had, four years since, the Jubilee-sixpence with- 
drawn because it simulated a half-sovereign so exactly that it 
needed only to be gilt to pass for one. We have the 
lately-introduced four-shilling piece, only by deliberate 
inspection distinguishable from a five-shilling piece. In 
most cases there lacks the one needful piece of information 
— the declared value of the coin. And once more there 



THE LIMITS OP STATE-DUTIES. 235 

are no proper adjustments to the demands : everywhere 
there is an unsatisfied cry for small change. 

So that the inference which the general laws of organ- 
ization compel us to draw,, is inductively verified in respect 
of the three all-essential departments of the State, as well 
as in a subordinate department, by evidence which every 
day increases. 

§ 127. There are two leading implications of this general 
truth above exhibited in the abstract, and above exemplified 
in the concrete. 

If people at large tolerate the extravagance, the stupidity, 
the carelessness, the obstructiveness, daily exemplified in 
the military, naval, and legal administrations ; much more 
will they tolerate them when exemplified in departments 
which are neither so vitally important nor occupy so large 
a space in the public mind. The vices of officialism must 
exist throughout public organizations of every kind, and 
may be expected to go to greater extremes where the neces- 
sity for checking them is less pressing. Not only, then, 
may we rationally conclude that when, beyond its essential 
functions, the State undertakes non-essential functions, it 
will perform these equally ill, but we may rationally con- 
clude that its performance of them will be still worse. 

The second implication is that the ill-performance of 
essential functions is itself made more extreme by the 
absorption of attention and energy in discharging non- 
essential functions. It cannot but be that the power to 
conduct a few businesses is diminished by the addition of 
many other businesses to be conducted ; and it cannot but 
be that when public criticism is directed to shortcomings 
of many kinds it must be less efficient than when directed 
to shortcomings of few kinds. If, instead of being 
almost wholly occupied with other things, Parliament were 
occupied almost wholly with the administrations for external 
protection and internal protection, no one will dare to deny 



236 justice. 

that these would be more efficient than now ; and no one 
will dare to assert that, if discussions on the platform and 
in the press were almost wholly about these administrations 
instead of being almost wholly about other things, the 
public would tolerate such inefficiency of them as it now does. 
Thus whether we wish to avoid the multiplication of ill- 
performed functions, or whether we wish to have the 
essential functions better performed, the requirement is the 
same — limitation. Specialization of functions directly 
improves the discharge of each function by adjusting 
the organ to it, and indirectly improves the discharge of 
other functions by permitting each to acquire an appro- 
priate organ. 

§ 128. The foregoing reasons for concluding that in the 
administration of social affairs the just is also the politic, will 
weigh but little with the majority. The beliefs in natural 
law and the universality of causation are not very strong 
even in the scientific world when vital phenomena are in 
question; and they are very feeble in the outer world. 
Only such of the above arguments as are based on facts 
daily published are likely to tell ; and the adequacy of even 
these will be denied by most. 

It will, therefore, be needful to reinforce them by others 
drawn from evidences directly relevant. Let us devote a 
chapter to these. 



CHAPTER XXYIII. 

THE LIMITS OF STATE-DUTIES CONTINUED. 

§ 129. "In simple matters direct perception cannot be 
trusted : to insure trustworthy conclusions we must use 
some mode of measurement by which the imperfections 
of the senses may be corrected. Contrariwise, in complex 
matters unaided contemplation suffices : we can adequately 
sum up and balance the evidences without reference to any 
general truth." 

Does an) one smile at this absurd proposition ? Why 
should he do so ? The probabilities are ten to one that, 
under a disguised form, this proposition forms part of his 
tacitly-accepted creed. If he hears of an artizan who 
pooh-poohs thermometers, and says he can tell better by 
his hand what is the right temperature for the liquid he 
uses, the reader, knowing that the sensation of heat or 
cold which anything yields varies greatly according to the 
temperature of the hand, sees how absurd is this self- 
confidence resulting from want of knowledge. But he sees 
no absurdity in the attempt to reach without any guiding 
principle a right conclusion respecting the consequences of 
some action affecting in multitudinous ways millions of 
people : here there needs no kind of meter by which to 
test the correctness of direct impressions. If, for instance, 
the question is whether he shall advocate the system of 
payment by results in State-aided schools, he thinks it 



238 justice. 

obvious that the stimulus given by it to teachers cannot 
fail to be beneficial to pupils. It does not occur to him 
that perhaps the induced pressure will be too great ; that 
perhaps it will foster a mechanical receptivity ; that mere 
cram may end in ultimate aversion to learning ; that there 
may be prompted special attention to clever pupils whose 
success will profit the teacher, and consequent neglect of 
dull ones; that a system which values knowledge for 
gaining money-grants, and not for its own sake, is unlikely 
to produce healthy intelligence; and that even the teachers 
under such a system are likely to become mere machines. 
Seeing, as he thinks quite clearly, the immediate results, 
and either not perceiving at all the remote results or 
making light of them, he has no doubt that the plan will 
be a good one. And then when, after some 20 years 
the effects of the plan are found to be so injurious that it is 
abandoned, after having damaged the healths of millions 
of children and inflicted an immeasurable amount of phy- 
sical and mental pain, he is not in the least the wiser for 
his disastrous misjudgment, but is ready next day to decide 
about some newly proposed scheme in the same way — by 
simple inspection and balancing probabilities. That is, as 
above said, though the aid of general principles is thought 
needful in simple matters, it is thought not needful in the 
most complex matters. 

And yet a minute's thought should make it clear to 
every one not only that these unguided judgments are very 
likely to be wrong, but also that there must exist some 
guidance by which correct judgments may be reached. 
For what can be more nonsensical than the belief that 
there is no natural causation in social affairs ? And 
how can anyone evade the charge of folly who, admitting 
that there must be natural causation, devises laws which 
take no account of it ? As argued in a preceding chapter, 
if there is no causation then one law is as good as another, 
and law-making ridiculous. If one law is not as good as 



THE LIMITS OP STATE-DUTIES. 239 

another, it must be that on men socially aggregated one 
law will operate more beneficially than another; and its 
more beneficial operation implies some adaptation to the 
natures of the men and their modes of co-operation. 
Concerning these there must exist some general truths, 
some deepest uniformities ; and the ultimate effect of any 
legislation must depend on its recognition of such uniformi- 
ties and its subordination to them. How, then, can there be 
anything more senseless than to proceed before inquiring 
what they are ? 

§ 130. Pursuit of happiness without regard to the condi- 
tions by fulfilment of which happiness is to be achieved, is 
foolish socially as well as individually — nay, indeed, more 
foolish; since the evils of disregarding the conditions are 
not unfrequently evaded by the individual, but, in conse- 
quence of the averaging of effects among many individuals, 
cannot be evaded by the society. 

Estimating the probable results of each act apart from 
any general sanction other than the pursuit of happiness, 
is the method pursued by every criminal. He thinks the 
chances are in favour of gaining pleasures and escaping 
pains. Ignoring those considerations of equity which 
should restrain him, he contemplates the proximate results 
and not the ultimate results ; and, in respect of the prox- 
imate results, he is occasionally right : he has the gratifi- 
cations which his ill-gotten gains bring and does not suffer 
the punishment. But in the long run it turns out that the 
evils are greater than the benefits ; partly because he does 
not always avoid the penalties, and partly because the 
kind of nature fostered by his actions is incapable of the 
higher kinds of happiness. 

The policy thus pursued with egoistic ends by the law- 
breaker is pursued with altruistic ends by the expediency 
politician. He, too, not for his own good, but, as he 
thinks, for the good of others, makes calculations of 



240 JUSTICE. 

probable pleasures and pains ; and, ignoring the dictates 
of pure equity, adopts such methods as he thinks will 
achieve the one and avoid the other. If it is a question of 
providing books and newspapers in so-called free libraries, 
he contemplates results which he makes no doubt will be 
beneficial ; and practically ignores the inquiry Whether it is 
just to take by force the money of A, B, and C, to pay for 
the gratifications of D, E, and F. Should his aim be the 
repression of drunkenness and its evils, he thinks exclu- 
sively of these ends, and, determined to impose his own 
beliefs on others, tries to restrict men's freedom of exchange 
and to abolish businesses in which capital has been invested 
with legal and social assent. Thus, as above said, the 
altruistic aggressor, like the egoistic aggressor, disregards 
all other guidance than that of estimated proximate results 
— is not restrained by the thought that his acts break the 
first principle of harmonious social life. 

Clearly this empirical utilitarianism, which makes happi- 
ness the immediate aim, stands in contrast with the 
rational utilitarianism, which aims at fulfilment of the 
conditions to happiness. 

§ 131. The upholders of political empiricism cannot 
object if we bring their own method to the empirical test. 
If, ignoring abstract principles, we are to be guided by 
results, either as calculated beforehand or as ascertained by 
experience, then, clearly, we cannot do better than judge in 
like manner of the empirical method itself. Let us do this. 

In a discussion on socialistic legislation which took 
place in the House of Lords on May 19, 1890, our Prime 
Minister said — 

" We no more ask what is the derivation or philosophical extraction of a 
proposal before we adopt it than a wise man would ask the character of a 
footman's grandfather before engaging the footman." 

After thus ridiculing the supposition that there are any 
general laws of social life to which legislation should con- 



THE LIMITS OF STATE-DUTIES. 241 

form, lie went on to say — " we ought first to discuss every 
subject on its own merits." And Lord Salisbury's method 
thus distinctly avowed, is the method universally followed 
by politicians who call themselves practical and sneer at 
l( abstract principles." 

But unhappily for them their method is the method which 
has been followed by those legislators who, throughout 
past thousands of years, have increased human miseries in 
multitudinous ways and immeasureable degrees by mischie- 
vous laws. Regard for " the merits of the case " guided 
Diocletian when he fixed the prices of articles and wages of 
workers, and similarly guided rulers of all European nations 
who, century, after century, in innumerable cases, have 
decided how much commodity shall be given for so much 
money, and in our own country guided those who, after 
the Black Death, framed the Statute of Labourers, and 
presently caused the peasant revolt. The countless Acts 
which, here and abroad, prescribed qualities and modes of 
manufacture, and appointed searchers to see that things 
were made as directed, were similarly prompted by considera- 
tion of " the merits of the case " : evils existed which it 
was obviously needful to prevent. Doubtless, too, the 
orders to farmers respecting the proportions of their arable 
and pasture lands, the times for shearing sheep, the number 
of horses to a plough, as well as those which insisted on 
certain crops and prohibited others, had a the merits of the 
case " in view. Similarly was it with the bounties on the 
exports of some commodities and the restrictions on the 
imports of others ; and similarly was it with the penalties 
on forestallers, and the treatment of usury as a crime. 
Each one of those multitudinous regulations enforced by 
swarms of officials, which in France nearly strangled industry, 
and was a part-cause of the French revolution, seemed to 
those who established it, a regulation which " the merits 
of the case " called for ; and no less did there seem to be 
called for the numberless sumptuary laws which, generation 



242 justice. 

after generation, kings and their ministers tried to enforce. 
Out of the 14,000 odd Acts which, in our own country, have 
been repealed, from the date of the Statute of Merton down 
to 1872 — some because of consolidations, some because they 
proved futile, some because they were obsolete — how many 
have been repealed because they were mischievous ? Shall 
we say one-half ? Shall we say one-fourth ? Shall we say 
less than one-fourth ? Suppose that only 3000 of these Acts 
were abolished after proved injuries had been caused, which 
is a low estimate. What shall we say of these 3000 Acts 
which have been hindering human happiness and increasing 
human misery; now for years, now for generations, now 
for centuries ? 

See then the verdict. If we are to be led by observation 
and experience, what do observation and experience say 
respecting this method of guidance ? Do they not show 
beyond all possibility of denial that it has proved a gigantic 
failure ? " No :" may perhaps be the reply — " You forget 
that though numerous laws have been repealed after doing 
mischief, numerous others have not been repealed but have 
proved beneficial." Very true ; but this reply is no less 
unfortunate than the original allegation. For which are the 
successful laws ? They are the laws which conform to 
those fundamental principles which practical politicians 
pooh-pooh. They are the laws countenanced by that social 
philosophy of which Lord Salisbury speaks so contemptu- 
ously. They are the laws which recognize and enforce the 
various corollaries from the formula of justice. For, 
as we have seen in a number of preceding chapters, 
social evolution has been accompanied by the progressive 
establishment of these ethically-enjoined laws. So 
that the evidence yields a double condemnation of the 
method of empirical utilitarianism. Facts conclusively 
prove the failure of that method and the success of the 
opposite method. 

But now observe that neither Lord Salisbury nor any 



THE LIMITS OP STATE-DUTIES. 243 

adherent of the same political creed, pursues with consistency 
this method of judging by " the merits of the case." 
Contrariwise, throughout by far the most important classes 
of cases they pursue the method they ridicule. Bring them 
to the test, and they will emphatically repudiate guidance 
by " the merits of the case," when the case is one in which 
the issues are simple and clear. 

In explanation of the frequent escapes of thieves in public 
thoroughfares, a letter to one of the daily papers narrated 
how, after witnessing a theft, the writer asked a man who 
was passed by the thief when running away, why he did 
not stop him. The reply was — " I was not going to stop 
the poor fellow. I expect the things he stole would do him 
more good than the man he stole them from." Here, 
consideration of " the merits of the case " was the avowed 
way of judging : the relative degrees of happiness of the 
thief and the person robbed were estimated and the decision 
justified the theft. " But the rights of property must be 
maintained," Lord Salisbury would reply. " Society would 
dissolve if men were allowed to take other men's goods on 
the plea that they had more need of them than the owners." 
Just so. But this is not judging by "the merits of the 
case " ; it is judging by conformity to a general principle. 
That philosophy at which Lord Salisbury sneers, shows 
that social co-operation can be effectively and harmoniously 
carried on, only if the relations between efforts and benefits 
are maintained intact. And, as we have seen, it is the same 
with all those laws the enforcement of which constitutes 
the administration of justice, and which it is part of Lord 
Salisbury's essential business to uphold : all of them are 
embodied corollaries from the philosophy he scorns. 

The essential difference is that though the lessons of 
thousands of years show that society improves in proportion 
as there is better and better conformity to these corollaries; 
and though it is to be inferred that it will be best to conform 
to them in each new case which arises ; Lord Salisbury thinks 



244 justice. 

that nonconformity to them is proper if a majority decides 
that " the merits of the case " demand it. 

§ 132. That anyone who has before him the facts daily 
set forth in newspapers, should suppose that when measures 
are taken to meet " the merits of the case," the consequences 
can be shut up within the limits of the case, is astonishing. 
That, after seeing how a change set up in some part of a 
society initiates other changes unforeseen, and these again 
others, anyone should think he is going to produce by Act 
of Parliament certain effects intended and no unintended 
effects, shows how possible it is to go on reading day by 
day without getting wiser. In any aggregate formed of 
mutually-dependent parts, there comes into play what I 
have elsewhere described as fructifying causation. The 
effects of any cause become themselves causes, often more 
important than their parent ; and their effects, again, become 
other causes. What happened when a great rise in the 
price of coals occurred some years ago ? The expenditure 
of every household was affected, and the poor were especially 
pinched. Every factory was taxed, and either the wages 
lowered or the price of the commodity raised. The smelting 
of iron became more expensive, and the cost of all those 
things, such as railways and engines, into which iron enters 
largely, was increased. The ability to compete with various 
classes of foreign manufactures was diminished ; fewer 
vessels were chartered for carrying products abroad; and 
the ship-building trade flagged with all the dependent 
trades. Similarly throughout in directions too numerous to 
follow. See, again, what has resulted from the late dock- 
strike — or rather, from the ill-judged sympathy which, 
guided by " the merits of the case," led public and police 
to tolerate the violence employed by dockers to achieve 
their ends. Successful use in this case of assaulting, 
bullying, and boycotting, prompted elsewhere strikes en- 
forced by like means — at Southampton, Tilbury, Glasgow, 



THE LIMITS OF STATE-DUTIES. 245 

Nottingham, &c. Other classes followed the lead — painters, 
leather- workers, cabinet-makers, scale- makers, bakers, car- 
penters, printers, sandwich-men, &c. And there were 
prompted like movements, still more unscrupulous, in 
Australia and America. Then, as secondary results, came 
the stoppages and perturbations of businesses, and through 
them of connected businesses, with consequent decrease of 
employment. Among tertiary results we have encourage- 
ment of the delusion that it only requires union for workers 
to get what terms they please, prompting suicidal demands. 
And, among still remoter results, we have the urging on 
of meddling legislation and the fostering of socialistic ideas. 

The indirect effects, multiplying and again multiplying, 
are often in the long run the reverse of those counted on. 
Past and present alike supply instances. Among those 
from the past may be named the Act of 8th Elizabeth, 
which, to protect the inhabitants of Shrewsbury against 
strangers, forbade all save freemen to trade in Welsh cottons, 
and which, six years afterwards, the Shrewsbury people 
begged should be repealed, because " of the impoverishing 
and undoing of the poor artificers and others, at whose suit 
the said Act was procured " : an experience parallelled in 
later days by that of the Spitalfields weavers. Then of 
striking examples which present times furnish, we have the 
results of certain laws in the western States of America. 
In his message to the Col. Legislature, January 8, 1885, 
Governor Grant says — " These laws were designed to 
exterminate the hawks, wolves, and loco-weeds . . . the 
hawks and wolves have steadily increased under the 
auspices of these bounty laws " : that is, as measured by 
the amount paid. Kindred results have been experienced 
in India. 

From the times when vagrants swarmed round monasteries 
to the Old Poor-Law days when many parishes were nearly 
swamped by paupers, experience has continually shown 
that measures guided by the apparent "merits of the case," 



246 justice. 

have done exactly the reverse of that which was proposed to 
be done — have increased distress instead of diminished it. 
And recent facts have continned to illustrate the same thing. 
The Chairman of the Bradfield Union, writing to the 
Spectator of April 19th, 1890, points out that seventeen 
years' administration led by principle instead of impulse, 
had reduced the indoor paupers from 259 to 100, and 
the out-door paupers from 999 to 42 : the conviction with 
which he ends his letter being that " the majority of pau- 
pers are created by out-relief." And this warning against 
being guided by the seeming necessities, has been since 
emphasized by Mr. Arnold White, writing from Tennyson 
Settlement, Cape Colony, to the Spectator for January 10, 
1891, in which he says: — "Any colonising scheme that 
does not distinctly include death to the wilfully idle if they 
choose to die, is predestined *to failure. . . . the lesson 
has been burned into me by long and bitter years of hard- 
earned experience." Which is to say that if, in respect of 
charity, we let ourselves be swayed by the apparent 
" merits of the case," we shall eventually exacerbate the 
evils instead of curing them. 

The judgments of the legislator who derides philosophy, 
and thinks it needful only to look at the facts before him, 
are equally respectable with those of the labourer who 
joins his fellows in vociferous advocacy of some public 
undertaking, for the reason that it will give employment — 
thus looking, as he does, at " the merits of the case " as 
directly to be anticipated, and thinking nothing of the 
remoter consequences : not asking what will be the effect 
of expending capital in doing something that will not 
bring adequate returns; not asking what undertakings, 
probably more remunerative and therefore more useful, the 
capital would have been otherwise devoted to ; not asking 
what other traders and artizans and labourers would then 
have had employment. For though the legislator may 
contemplate effects somewhat more remote, yet he is 



THE LIMITS OV STATE-DUTIES. 247 

practically as far as the labourer from conceiving the 
ultimate waves of change, reverberating and re-reverberating 
throughout society. 

§ 133. Which is the more misleading, belief -without 
evidence, or refusal to believe in presence of overwhelming 
evidence ? If there is an irrational faith which persists 
without any facts to support it, there is an irrational lack 
of faith which persists spite of the accumulation of facts 
which should produce it ; and we may doubt whether the 
last does not lead to worse results than the first. 

The average legislator, equally with the average citizen, 
has no faith whatever in the beneficent working of social 
forces, notwithstanding the almost infinite illustrations of 
this beneficent working. He persists in thinking of a 
society as a manufacture and not as a growth : blind to the 
fact that the vast and complex organization by which its 
life is carried on, has resulted from the spontaneous co- 
operations of men pursuing their private ends. Though, 
when he asks how the surface of the Earth has been 
cleared and made fertile, how towns have grown up, how 
manufactures of all kinds have arisen, how the arts have 
been developed, how knowledge has been accumulated, 
how literature has been produced, he is forced to recognize 
the fact that none of these are 'of governmental origin, but 
have many of them suffered from governmental obstruction ; 
yet, ignoring all this, he assumes that if a good is to be 
achieved or an evil prevented, Parliament must be invoked. 
He has unlimited faith in the agency which has achieved 
multitudinous failures, and has no faith in the agency 
which has achieved multitudinous successes. 

Of the various feelings which move men to action, each 
class has its part in producing social structures and 
functions. There are first the egoistic feelings, most 
powerful and most active, the effects of which, as develop- 
ing the arrangements for production and distribution, have 



248 justice. 

been above adverted to, and which, whenever there is a 
new sphere to be profitably occupied, are quick to cause 
new growths. From the cutting of a Suez Canal and the 
building of a Forth Bridge, to the insurance of ships, 
houses, lives, crops, windows, the exploration of unknown 
regions, the conducting of travellers' excursions, down to 
automatic supply-boxes at railway-stations and the loan of 
opera-glasses at theatres, private enterprise is ubiquitous 
and infinitely varied in form ; and when repressed by State- 
agency in one direction buds out in another. Reminding 
us of the way in which, in Charles IPs time, there was 
commenced in London a local penny-post, which was 
suppressed by the government, we have, in the Boy 
Messengers' Company and its attempted suppression, illus- 
trations of the efficiency of private enterprise and the 
obstrucfciveness of officialism. And then, if there needs to add 
a case showing the superiority of spontaneously-formed 
agencies we have it in the American Express Companies, 
of which one has 7000 agencies, has its own express trains, 
delivers 25,000,000 parcels annually, is employed by the 
government, has a money-order system which is replacing 
that of the Post Office, and has now extended its business to 
Europe, India, Africa, South America, and Polynesia. 

Beyond those egoistic feelings by the combined forces of 
which the sustaining organization of every society has 
been developed, there are in men the ego-altruistic and 
altruistic feelings — the love of approbation and the sympathy 
— which prompt them to various other single and combined 
actions, and generate various other institutions. It is 
needless to go back into the past to exemplify the operation 
of these in the endowments for charitable and educational 
purposes. The present day furnishes ample evidence of 
their potency. Here, and still more in America, we have 
vast sums left for founding colleges, and, in more numerous 
cases, sums for endowing professorial chairs and scholar- 
ships 3 we have gifts of immense sums to build and fill 



THE LIMITS OF STATE-DUTIES. 249 

public libraries; we have parks and gardens given to 
towns by private individuals ; we "have museums bequeathed 
to the nation. In The Standard for April 11, 1890, is 
given an account showing that the bequests to hospitals, 
asylums, missions, societies, for 1889 amounted to£l, 080,000; 
and that for the first quarter of 1890 they amounted to 
£300,000. Then, in The Nineteenth Century, for January, 
1890, Mr. Huish has pointed out that during the last few 
years, the gifts of private individuals for the support of 
art, have been respectively, for buildings £347,500, and 
in pictures or money £559,000 ; to which may be added 
the more recent donation of £80,000 for a gallery of 
British Art. 

Nor must we forget the daily activities of multitudinous 
philanthropic people in urging one or other movement for 
the benefit of fellow-citizens. Countless societies, with an 
enormous aggregate revenue, are formed for unselfish 
purposes : all good in design if not in result. And the 
motives, largely if not wholly altruistic, which prompt the 
establishment and working of these, far from showing any 
decrease of strength, become continually stronger. 

Surely, then, if these forces have already done so much 
and are continually doing more, their future efficiency may 
be counted upon. And it may be reasonably inferred that 
they will do many things which we do not yet see how 
to do. 

§ 134. So that even if we disregard etbical restraints, 
and even if we ignore the inferences to be drawn from that 
progressing specialization which societies show us, we still 
find strong reasons for holding that State-functions should 
be restricted rather than extended. 

Extension of them in pursuit of this or that promised 
benefit, has all along proved disastrous. The histories of 
all nations are alike in exhibiting the enormous evils that 
have been produced by legislation guided merely by " the 



250 JUSTICE. 

merits of the case;" while they unite in proving the success 
of legislation which has been guided by considerations 
of equity. 

Evidence thrust before us every morning shows through- 
out the body politic a fructifying causation so involved 
that not even the highest intelligence can anticipate the 
aggregate effects. The practical politician so-called, who 
thinks that the influences of his measure are to be shut up 
within the limits of the field he contemplates, is one of the 
wildest of theorists. 

And then, while his faith in the method of achieving 
artificially this or that end, is continually discredited by 
failures to work the effects intended and by working unin- 
tended effects, he shows no faith in those natural forces 
which in the past have done much, are at present doing 
more, and in the future may be expected to do most. 



CHAPTER XXIX. 

THE LIMITS OF STATE-DUTIES CONCLUDED. 

§ 135, Of the many reasons for restricting the range of 
governmental actions, the strongest remains to be named. 
The end which the statesman should keep in view as higher 
than all other ends, is the formation of character. And if 
there is entertained a right conception of the character 
which should be formed, and of the means by which it may 
be formed, the exclusion of multiplied State-agencies is 
necessarily implied. 

" How so ? " will doubtless be the exclamation of many. 
" Is not the formation of character the end to which much 
of the legislation we advocate is directed ? Do we not 
contend that an all-important part of the State's business 
is the making of good citizens? and are not our school- 
systems, our free-libraries, our sanitary arrangements, our 
gymnasia, &c, devised with the view of improving 
their natures ? " 

To this interrogative reply, uttered with an air of 
astonishment and an implied conviction that nothing 
remains to be said, the answer is that everything depends 
on the goodness of the ideal entertained and the appropriate- 
ness of the appliances for realizing it; and that both of 
them are radically wrong. 

These paragraphs sufficiently indicate the antagonist 



252 justice. 

views to be here discussed. Let us now enter on the 
discussion of them systematically. 

§ 136. Upwards from hordes of savages to civilized 
nations, countless examples show that to make an efficient 
warrior preparation is needed. Practice in the use of weapons 
begins in boyhood ; and throughout youth the ambition is 
to be a good marksman with the bow and arrow, to throw 
the javelin or the boomerang with force and precision, and 
to become an adept in defence as well as in attack. At the 
same time speed and agility are effectually cultivated, and 
there are trials of strength. More relevant still to the end 
in view comes the discipline in endurance ; sometimes going 
to the extent of submission to torture. In brief, each male 
of the tribe is so educated as to fit him for the purposes of 
the tribe — to fit him for helping it in maintaining its 
existence, or subjugating its neighbours, or both. Though 
not a State-education in the modern sense, the education is 
one prescribed by custom and enforced by public opinion. 
That it is the business of the society to mould the individual 
is asserted tacitly if not openly. 

With that social progress which forms larger communities 
regularly governed, there goes a further development of 
State- education. Not only are there now deliberately 
cultivated the needful strength, skill, and endurance, but 
there is cultivated that subordination which is required for 
the performance of military evolutions, and that further 
subordination to leaders and to rulers without which the 
combined forces cannot be used in the desired ways. It is 
needless to do more than name Greece, and especially 
Sparta, as exemplifying this phase. 

With this practice went an appropriate theory. From 
the belief that the individual belonged neither to himself 
nor to his family but to his city, there naturally grew up 
the doctrine that it was the business of his city to mould 
him into fitness for its purposes. Alike in Plato and in 



THE LIMITS OF STATE-DUTIES. 253 

Aristotle we have elaborate methods proposed for the due 
preparation of children and youths for citizenship, and an 
unhesitating assumption that in a good State, education 
must be a public business. 

Evidently, then, while war is the chief business of life, 
the training of individuals by governmental agency after a 
pattern adapted to successful fighting, is a normal accompani- 
ment. In this case experience furnishes a tolerably correct 
ideal to be aimed at, and guidance in the choice of methods 
productive of the ideal. All free men have to be made 
as much as may be into military machines, automatically 
obedient to orders; and a unifying discipline is required 
to form them. Moreover, just as in the militant type the 
coercive system of rule which regimentation involves, spreads 
from the fighting part throughout the whole of the ancillary 
parts which support it ; so, there naturally establishes itself 
the theory that not soldiers only, but all other members 
of the community, should be moulded by the government 
into fitness for their functions. 

§ 137. Not recognizing the fundamental distinction be- 
tween a society which, having fighting for its chief business, 
makes sustentation subordinate, and a society which, having 
sustentation for its chief business, makes fighting subor- 
dinate, there are many who assume that a disciplinary 
policy appropriate to the first is appropriate to the last 
also. But the relations of the individual to the State are in 
the two cases entirely different. Unlike the Greek, who, 
not owning himself was owned by his city, the Englishman 
is not in any appreciable degree owned by his nation, but 
in a very positive way owns himself. Though, if of fit 
age, he may on great emergency be taken possession of 
and made to help in defending his country; yet this con- 
tingency qualifies to but small extent the private possession 
of his body and the self-directing of his actions. 

Throughout a series of chapters we saw that the 



254 justice. 

progressive establishment by law of those rights which ar6 
deduced by ethics, made good the free use of himself by 
each individual, not only against other individuals but, in 
many respects, against the State : the State, while defending 
him against the aggressions of others, has in various 
directions ceased to aggress upon him itself. And it is an 
obvious corollary that in a state of permanent peace this 
change of relation would be complete. 

How does this conclusion bear on the question at issue? 
The implication is that whereas the individual had to be 
moulded by the society to suit its purposes, the society has 
now to be moulded by the individual to suit his purposes. 
Instead of a solidified body-politic, wielding masses of its 
units in combined action, the society, losing its coercive 
organization, and holding together its units with no other 
bonds than are needed for peaceful co-operation, becomes 
simply a medium for their activities. Once more let me 
emphasize the truth that since a society in its corporate 
capacity is not sentient, and since the sentiency dwells 
exclusively in its units, the sole reason for subordinating 
the sentient lives of its units to the unsentient life of the 
society, is that while militancy continues the sentient lives 
of its units are thus best preserved ; and this reason lapses 
partially as militancy declines, and wholly as industrialism 
becomes complete. The claim of the society to discipline 
its citizens disappears. There remains no power which 
may properly prescribe the form which individual life 
shall assume. 

" But surely the society in its corporate capacity, guided 
by the combined intelligences of its best members, may 
with advantage frame a conception of an individual nature 
best fitted for harmonious industrial life, and of the 
discipline calculated to produce such a nature ? " In this 
plea there is tacitly assumed the right of the community 
through its agents to impose its scheme — an assumed right 
quite inconsistent with the conclusions drawn in foregoing 



THE LTMITS OF STATE-DUTIES. 255 

chapters. But not here dwelling on this, let us ask what 
fitness the community has for deciding on the character to 
be desired, and for devising means likely to create it. 

§ 188. Whether the chosen ideal of a citizen, and the 
chosen process for producing him, be good or bad, the 
choice inevitably has three implications, any one of which 
condemns it. 

The system must work towards uniformity. If the 
measures taken have any effect at all, the effect must in 
part be that of causing some likeness among the individuals : 
to deny this is to deny that the process of moulding is 
operative. But in so far as uniformity results advance is 
retarded. Everyone who has studied the order of nature 
knows that without variety there can be no progress — 
knows that, in the absence of variety, life would never 
have evolved at all. The inevitable implication is that 
further progress must be hindered if the genesis of variety 
is checked. 

Another concomitant must be the production of a passive 
receptivity of whatever form the State decides to impress. 
Whether submissiveness be or be not part of the nature 
which the incorporated society proposes to give its units, 
it cannot enforce its plans without either finding or 
creating submissiveness. Whether avowedly or not, 
part of the desired character must be readiness in each 
citizen to submit, or make his children submit, to a 
discipline which some or many citizens determine to impose. 
There may be men who think it a trait of high humanity 
thus to deliver over the formation of its nature to the will 
of an aggregate mostly formed of inferior units. But with 
such we will not argue. 

One further necessary implication is that either there exists 
no natural process by which citizens are in course of being 
moulded, or else that this natural process should be super- 
seded by an artificial one. To assert that there is no 



256 justice. 

natural process is to assert that, unlike all other beings, 
which tend ever to become adapted to their environments, 
the human being does not tend to become adapted to his 
environment — does not tend to undergo such changes as 
fit him for carrying on the life which circumstances require 
him to lead. Anyone who says this must say that the 
varieties of mankind have arisen without cause ; or else 
have been caused by governmental action. Anyone who 
does not say this must admit that men are in course of 
being naturally adjusted to the requirements of a developed 
social state ; and if he admits this, he will hesitate before he 
asserts that they may be better adjusted artificially. 

§ 139. Let us pass now from these most abstract aspects 
of the matter to more concrete aspects. 

It is decided to create citizens having forms fit for the 
life of their society. Whence must the conception of a fit 
form be derived ? Men inherit not only the physical and 
mental constitutions of their ancestors, but also, in the 
main, their ideas and beliefs. The current conception of a 
desirable citizen must therefore be a product of the past, 
slightly modified by the present ; and the proposal is that 
past and present shall impose their conception on the 
future. Anyone who takes an impersonal view of the 
matter can scarcely fail to see in this a repetition, in 
another sphere, of follies committed in every age by every 
people in respect of religious beliefs. In all places and in 
all times, the average man holds that the creed in which he 
has been brought is the only true creed. Though it must 
be manifest to him that necessarily in all cases but one, 
such beliefs, held with confidence equal to that which he 
feels, are false ; yet, like each of the others, he is certain 
that his belief is the exception. A confidence no less 
absurd, is shown by those who would impose on the 
future their ideal citizen. That conceived type which the 
needs of past and present times have generated, they do 



THE LIMITS OP STATE-DUTIES. 257 

not' doubt would be a type appropriate for times to come. 
Yet it needs but to go back to the remote past, when 
industrial life was held contemptible and virtue meant 
fortitude, valour, bravery ; or to the less remote past when 
noble meant high-born while labourer and villein were 
equivalents; or to the time when abject submission of each 
grade to the grade above was thought the primary duty; 
or to the time when the good citizen of every rank was 
held bound to accept humbly the appointed creed ; to see 
that the characters supposed to be proper for men were 
unlike the characters we now suppose proper for them. 
Nevertheless, the not-very-wise representatives of electors 
who are mostly ignorant, are prepared, with papal assump- 
tion, to settle the form of a desirable human nature, and 
to shape the coming generation into that form. 

While they are thus confident about the thing to be 
done, they are no less confident about the way to do it; 
though in the last case as in the first, the past proves to 
them how utter has been the failure of the methods 
century after century pursued. Throughout a Christendom 
full of churches and priests, full of pious books, full of 
observances directed to fostering the religion of love, 
encouraging mercy and insisting on forgiveness, we have 
an aggressiveness and a revengefulness such as savages 
have everywhere shown. And from people who daily read- 
their bibles, attend early services, and appoint weeks of 
prayer, there are sent out messengers of peace to inferior 
races, who are forthwith ousted from their lands by 
filibustering expeditions authorized in Downing Street; 
while those who resist are treated as "rebels," the deaths 
thev inflict in retaliation are called "murders," and the 
process of subduing them is named " pacification." 

At the same time that we thus find good reason to 
reject the artificial method of moulding citizens as wrong 
in respect alike of end and means, we have good reason to 

12 



258 justice. 

put faith in the natural method — the spontaneous adaptation 
of citizens to social life. 

§ 1 40. The organic world at large is made up of illustra- 
tions, infinite in number and variety, of the truth that 
by direct or indirect processes the faculties of each kind 
of creature become adjusted to the needs of its life; and 
further, that the exercise of each adjusted faculty becomes 
a source of gratification. In the normal order not only 
does there arise an agent for each duty, but consciousness 
is made up of the more or less pleasurable feelings which 
accompany the exercise of these agents. Further, the 
implication is that where the harmony has been deranged, 
it gradually re-establishes itself — that where change of 
circumstances has put the powers and requirements out of 
agreement, they slowly, either by survival of the fittest or 
by the inherited effects of use and disuse, or by both, come 
into agreement again. 

This law, holding of human beings among others, implies 
that the nature which we inherit from an uncivilized 
past, and which is still very imperfectly fitted to the 
partially-civilized present, will, if allowed to do so, slowly 
adjust itself to the requirements of a fully-civilized future. 
And a further implication is that the various faculties, 
tastes, abilities, gradually established, will have for their 
concomitants the satisfactions felt in discharging the various 
duties social life entails. Already there has been gained a 
considerable amount of the needful capacity for work, which 
savages have not ; already the power of orderly co-operation 
under voluntary agreement has been developed; already 
such amounts of self-restraint have been acquired that ^ost 
men carry on their lives without much impeding ' one 
another ; already the altruistic interests felt by citizens in 
social affairs at large are such as prompt efforts, individual 
and spontaneously combined, to achieve public ends ; and 



THE LIMITS OF STATE-DUTIES. 259 

already men's sympathies have become active enough to 
generate multitudinous philanthropic agencies — too multi- 
tudinous in fact. And if, in the course of these few 
thousand years, the discipline of social life has done so much, 
it is folly to suppose that it cannot do more — folly to suppose 
that it will not in course of time do all that has to be done. 

A further truth remains. It is impossible for artificial 
moulding to do that which natural moulding does. For 
the very essence of the process as spontaneously carried on, 
is that each faculty acquires fitness for its function by 
performing its function ; and if its function is performed for 
it by a substituted agency, none of the required adjustment 
of nature takes place ; but the nature becomes deformed to 
fit the artificial arrangements instead of the natural arrange- 
ments. More than this : it has to be depleted and dwarfed, 
for the support of the substituted agencies. Not only does 
there result the incapable nature, the distorted nature, 
and the nature which misses the gratifications of desired 
achievement ; but that the superintending instrumentalities 
may be sustained, the sustentation of those who are super- 
intended is diminished: their lives are undermined and 
their adaptation in another way impeded. 

Again, then, let me emphasize the fundamental distinction. 
While war is the business of life, the entailed compulsory 
co-operation implies moulding of the units by the aggregate 
to serve its purposes ; but when there comes to predominate 
the voluntary co-operation characterizing industrialism, the 
moulding has to be spontaneously achieved by self -adjust- 
ment to the life of voluntary co-operation. The adjustment 
cannot possibly be otherwise produced. 

§ 141. And now we come round again at last to the 
general principle enunciated at first. All reasons for going 
counter to the primary law of social life prove invalid ; and 
there is no safety but in conformity to that law. 

If the political meddler could be induced to contemplate 



2G0 JUSTICE. 

the essential meaning of his plan, he would be paralyzed 
by the sense of his own temerity. He proposes to suspend, 
in some way or degree, that process by which all life has 
been evolved — to divorce conduct from consequence. 
While the law of life at large is to be partially broken by 
him, he would more especially break that form of it 
which results from the associated state. Traversing by his 
interference that principle of justice common to all living 
things, he would traverse more especially the principle of 
human justice, which requires that each shall enjoy the 
benefits achieved within the needful limits of action: he 
would re-distribute the benefits. Those results of accumu- 
lated experiences in each civilized society which, registered 
in laws, have, age after age, established men's rights 
with increasing clearness, he proposes here or there to 
ignore, and to trespass on the rights. And whereas in 
the course of centuries, the ruling powers of societies, 
while maintaining men's rights against one another more 
effectually, have also themselves receded from aggressions 
on those rights, the legislative schemer would invert this 
course, and decrease that freedom of action which has been 
increasing. Thus his policy, setting at nought the first 
principle of life at large and the first principle of social 
life in particular, ignores also the generalized results of 
observations and experiments gathered during thousands of 
years. And all with what warrant ? All for certain reasons 
of apparent policy, every one of which we have found to 
be untrustworthy. 

But why needs there any detailed refutation ? What can 
be a more extreme absurdity than that of proposing to 
improve social life by breaking the fundamental law of 
social life ? 



APPENDICES. 



APPENDIX A. 

THE KANTIAN IDEA OF EIGHTS. 

The fundamental principle enunciated in the chapter entitled 
" The Formula of Justice," is one which I set forth in Social 
Statics : the Conditions essential to Human Happiness specified 
and the first of them developed, originally published at the close 
of 1850. I then supposed that I was the first to recognize the 
law of equal freedom as being that in which justice, as variously 
exemplified in the concrete, is summed up in the abstract ; and 
I continued to suppose this for more than thirty years. But in 
the second of two articles entitled "Mr. Herbert Spencer's 
Theory of Society," published by Mr. F.W.Maitland (now Downing 
Professor of Law at Cambridge) in Mind, vol. viii. (1883), pp. 
508-9, it was pointed out that Kant had already enunciated, in 
other words, a similar doctrine. Not being able to read the 
German quotations given by Mr. Maitland, I was unable to 
test his statement. When, however, I again took up the subject, 
and reached the chapter on "The Formula of Justice," it became 
needful to ascertain definitely what were Kant's views. For 
some time I was defeated, in my search for them. Neither in 
his Theory of Ethics ; or Practical Philosophy, nor in the Critique 
of Practical Reason, both translated by Dr. T. K. Abbott, could 
I find anything to the purpose ; and it was only after some 
inquiries that I became aware of a recent translation (1887) by 
Mr. W. Hastie, entitled The Philosophy of Law, An Exposition 
of the Fundamental Principles of Jurisprudence as the Science 
of Right. In this, at p. 45, I find the sentence: — "Right, there- 
fore, comprehends the whole of the conditions under which 
the voluntary actions of any one Person can be harmonized 
in reality with the voluntary actions of every other Person, 



264 APPENDIX A. 

according to a universal Law of Freedom.'* And then there 
follows this section : — 

" UNIVEKSAL PEINCIPLE OF EIGHT. 

" ' Every Action is right which in itself, or in the maxim on which it 
proceeds, is such that it can co-exist along with the Freedom of the Will of 
each and all in action, according to a universal Law.' 

"If, then, my action or my condition generally can co-exist with the 
freedom of every other, according to a universal Law, anyone does me a 
wrong who hinders me in the performance of this action, or in the mainten- 
ance of this condition. For such a hindrance or obstruction cannot co-exist 
with Freedom according to universal Laws. 

" It follows also that it cannot be demanded as a matter of Eight, that 
this universal Principle of all maxims shall itself be adopted as my maxim, 
that is, that I shall make it the maxim of my actions. For anyone may be 
free, although his Freedom is entirely indifferent to me, or even if I wished 
in my heart to infringe it, so long as I do not actually violate that freedom 
by my external action. Ethics, however, as distinguished from Jurisprudence, 
imposes upon me the obligation to make the fulfilment of Eight a maxim of 
my conduct. 

" The universal Law of Eight may then be expressed, thus : • Act 
externally in such a manner that the free exercise of thy Will may be able 
to co-exist with the Freedom of all others, according to a universal Law.' 
This is undoubtedly a Law which imposes obligation upon me ; but it does 
not at all imply and still less command that I ought, merely on account of 
this obligation, to limit my freedom to these very conditions. Eeason in 
this connection says only that it is restricted thus far by its Idea, and may 
be likewise thus limited in fact by others ; and it lays this down as a Postulate 
which is not capable of further proof. As the object in view is not to teach 
Virtue, but to explain what right is, thus far the Law of Eight, as thus laid 
down, may not and should not be represented as a motive-principle of action." 

These passages make it clear that Kant had arrived at a 
conclusion which, if not the same as my own, is closely allied to 
it. It is, however, worth remarking that Kant's conception, 
similar though it is in nature, differs both in its origin and in 
its form. 

As shown on a preceding page, his conclusion is reached 
by a "search in the pure Reason for the sources of such 
judgments" — forms a part of the " metaphysic of morals"; 
whereas, as shown on pp. 67-8 of the original edition of Social 
Statics, the law of equal freedom, there shadowed forth and 
subsequently stated, is regarded as expressing the primary 
condition which must be fulfilled before the greatest happiness 
can be achieved by similar beings living in proximity. Kant 
enunciates an a priori requirement, contemplated as irre- 
spective of beneficial ends ; whereas I have enunciated this 
a priori requirement as one which, under the circumstances 
necessitated by the social state, must lx. conformed to for 
achievement of beneficial ends. 

The noteworthy distinction between the forms in which the 
conception is presented is this. Though (on p. 56) Kant, by 



THE KANTIAN IDEA OP RIGHTS. 265 

saying that " there is only one innate right, the birthright of 
freedom," clearly recognizes the positive element in the concep- 
tion of justice ; yet, in the passages quoted above, the right of 
the individual to freedom is represented as emerging by implica- 
tion from the wrongfulness of acts which aggress upon this 
freedom. The negative element, or obligation to respect limits, 
is the dominant idea; whereas in my own case the positive 
element — the right to freedom of action— is represented as 
primary ; while the negative element, resulting from the 
limitations imposed by the presence of others, is represented as 
secondary. This distinction may not be without its significance; 
for the putting of obligation in the foreground seems natural to 
a social state in which political restraints are strong, while the 
putting of claims in the foreground seems natural to a social 
state in which there is a greater assertion of individuality. 






APPENDIX B. 

THE LAND-QUESTION. 

The cotirse of Nature, "red in tooth and claw," has been, on 
a higher plane, the course of civilization. Through "blood and 
iron" small clusters of men have been consolidated into larger 
ones, and these again into still larger ones, until nations have 
been formed. This process, carried on everywhere and always 
by brute force, has resulted in a history of wrongs upon wrongs : 
savage tribes have been slowly welded together by savage 
means. We could not, if we tried, trace back the acts of 
unscrupulous violence committed during these thousands of 
years ; and could we trace them back we could not rectify their 
evil results. 

Land-ownership was established during this process ; and if 
the genesis of land-ownership was full of iniquities, they were 
iniquities committed not by the ancestors of any one class 
of existing men but by the ancestors of all existing men. The 
remote forefathers of living Englishmen were robbers, who stole 
the lands of men who were themselves robbers, who behaved in 
like manner to the robbers who preceded them. The usur- 
pation by the Normans, here complete and there partial, was of 
lands which, centuries before, had been seized, some by piratical 
Danes and Norsemen, and some at an earlier time by hordes of 
invading Frisians or old English. And then the Celtic owners, 
expelled or enslaved by these, had in bygone ages themselves 
expropriated the peoples who lived in the underground houses 
here and there still traceable. What would happen if we tried 
to restore lands inequitably taken — if Normans had to give 
them back to Danes and Norse and Frisians, and these again to 
Celts, and these again to the men who lived in caves and used 
flint implements ? The only imaginable form of the transaction 
would be a restoration of Great Britain bodily to the Welsh 
and the Highlanders j and if the Welsh and the Highlanders 



THE LAND-QUESTION". 267 

did not make a kindred restoration, it could only be on the 
'ground that, having not only taken the land of the aborigines 
but killed them, they had thus justified their ownership ! 

The wish now expressed by many that land-ownership should 
be conformed to the requirements of pure equity, is in itself 
commendable ; and is in some men prompted by conscientious 
feeling. One would, however, like to hear from such the 
demand that not only here but in the various regions we are 
peopling, the requirements of pure equity should be conformed*" 
to. As it is, the indignation against wrongful appropriations 
of land, made in the past at home, is not accompanied by any 
indignation against the more wrongful appropriations made 
at present abroad. Alike as holders of the predominant political 
power and as furnishing the rank and file of our armies, the 
masses of the people are responsible for those nefarious doings 
all over the world which end in the seizing of new territories 
and expropriation of their inhabitants. The filibustering expe- 
ditions of the old English are repeated, on a vastly larger scale, 
in the filibustering expeditions of the new English. Yet those 
who execrate ancient usurpations utter no word of protest 
against these far greater modern usurpations — nay, are aiders 
and abettors in them. Remaining as they do passive and silent 
while there is going on this universal land-grabbing which their 
votes could stop ; and supplying as they do the soldiers who 
effect it ; they are responsible for it. By deputy they are 
committing in this matter grosser and more numerous injustices 
than were committed against their forefathers. 

That the masses of landless men should regard private land- 
ownership as having been wrongfully established, is natural ; 
and, as we have seen, they are not without warrant. But if we 
entertain the thought of rectification, there arises in the first 
place the question — which are the wronged and which are the 
wrongers ? Passing over the primary fact that the ancestors 
of existing Englishmen, landed and landless, were, as a body, 
men who took the land by violence from previous owners ; and 
thinking only of the force and fraud by which certain of these 
ancestors obtained possession of the land while others of 
them lost possession ; the preliminary question is — Which are 
the descendants of the one and of the other? It is tacitly 
assumed that those who now own lands are the posterity of the 
usurpers, and that those who now have no lands are the posterity 
of those whose lands were usurped. But this is far from being 
the case. The fact that among the nobility there are very few 
whose titles go back to the days when the last usurpations took 
place, and none to the days when there took place the original 
usurpations ; joined with the fact that among existing land- 
owners there are many whose names imply artizan-ancestors ; 



268 APPENDIX B. 

show that we have not now to deal with descendants of tboso 
who unjustly appropriated the land. While, conversely, the 
numbers of the landless whose names prove that their fore- 
fathers belonged to the higher ranks (numbers which must be 
doubled to take account of inter-marriages with female descen- 
dants) show that among those who are now without land, many 
inherit the blood of the land- usurpers. Hence, that bitter 
feeling towards the landed which, contemplation of the past 
generates in many of the landless, is in great measure mis- 
placed. They are themselves to a considerable extent descen- 
dants of the sinners ; while those they scowl at are to a con- 
siderable extent descendants of the sinned-against. 

Bat granting all that is said about past inequities, and leaving 
aside all other obstacles in the way of an equitable re-arrange- 
ment, there is an obstacle which seems to have been overlooked. 
Even supposing that the English as a race gained possession of 
the land equitably, which, they did not ; and even supposing 
that existing land-ow 7 ners are the posterity of those who spoiled 
their fellows, which in large part they are not ; and even sup- 
posing that the existing landless are the posterity of the 
despoiled, which in large part they are not; there would still 
have to be recognized a transaction that goes far to prevent 
rectification of injustices. If we are to go back upon the past 
at all, we must go back upon the past wholly, and take account 
not only of that which the people at large have lost by private 
appropriation of land, but also that which they have received in 
the form of a share of the returns — we "must take account, that 
is, of Poor-Law relief. Mr. T. Mackay, author of The English 
Poor, has kindly furnished me with the following memoranda, 
showing something like the total amount of this since the 43rd 
Elizabeth (1601) in England and Wales. 

Sir G. Nicholls [History of Poor Law, appendix to Vol. II] ventures no 
estimate till 1688. At that date he pats the poor rate at nearly £700,000 
a year. Till the beginning of this century the amounts are based more or 
less on estimate. 

1601-1680. say 

1631-1700. [1688 Nicholls puts at 700,000.] 

1701-1720. [1701 Nicholls puts at 900,000.] 

1721-1760. [1760 Nicholls says 1| millions.] 

1761-1775. [1775 put at 1£ millions.] 

1776-1800. [1784 2 millious.] 

1801-1812. [1803 4 millions ; 1813 6 millions.] 
. 1813-1840. [based on exact figures given by Sir G. 

Nicholls.] 170 

1841-1890. [based on Mulball's Diet, of Statistics 

and Statistical Abstract.] 334 „ 

734 millions. 
The above represents the amount expended in relief of the poor. 



3 millions. 


30 


>> 


20 


»» 


40 


>» 


22 


>> 


50 




65 


>5 



THE LAND-QUESTION. 269 

Under the general term "poor-rate," moneys have always 
been collected for other purposes — county, borough, police rates, 
etc. The following table shows the annual amounts of these in 
connexion with the annual amounts expended on the poor. 

Expended on 



Total levied. 

I In 1803. 5.348.000 

V ^ ii* \ » 1813. 8.046.811 

Jucholls. 1 j - 3 6.522,112 



d 



Total spent. 
Statistical f „ 1875. 12.694.208 

abstract. 1 „ 1889. 15.970.126 



poor. 
4.077.000 
6.656.106 
4.939.064 



7.488.4S1 
8.306.477 



Other purposes 

balance. 

1.271.000 ? 

1.990.735 ? 

1.583.341 ? 

Sum spent. 
5.205.727 
7.603.649 



In addition, therefore, to sums set out in the first table, there is a further 
sum, rising during the century from 1J to 7£ millions per annum ' for 
other purposes.' 

Mulhall on whom I relied for figures between 1853 and 1875 does not give 
" other expenditure." 

Of course of the £734,000,000 given to the poorer members 
of the landless class during three centuries, a part has arisen 
from rates on houses; only such portion of which as is chargeable 
against ground rents, being rightly included in the sum the land 
has contributed. From a land-owner, who is at the same time 
a Queen's Counsel, frequently employed professionally to arbi- 
trate in questions of local taxation, I have received the opinion 
that if, out of the total sum received by the poor, £500,000,000 
is credited to the land, this will be an under-estimate. Thus 
even if we ignore the fact that this amount, gradually con- 
tributed, would, if otherwise gradually invested, have yielded 
in returns of one or other kind a far larger sum, it is manifest 
that against the claim of the landless may be set off a large claim 
of the landed — perhaps a larger claim. 

For now observe that the landless have not an equitable 
claim to the land in its present state, — cleared, drained, fenced, 
fertilized, and furnished with farm-buildings, &c, — but only to 
the land in its primitive state, here stony and there marshy, 
covered with forest, gorse, heather, &c. : this only, it is, which 
belongs to the community. Hence, therefore, the question 
arises — What is the relation between the original "prairie 
value " of the land, and the amount which the poorer among the 
landless have received during these three centuries. Probably 
the land-owners would contend that for the land in its primitive, 
unsubdued state, furnishing nothing but wild animals and wild 
fruits, £500,000,000 would be a high price. 

When, in Social Statics, published in 1850, I drew from the 
law of equal freedom the corollary that the land could not 
equitably be alienated from the community, and argued that, 
after compensating its existing holders, it should be re- 



270 APPENDIX B. 

appropriated "by the community, I overlooked the foregoing 
considerations. Moreover, I did not clearly see what would be 
implied by the giving of compensation for all tbat value which 
the labour of ages has given to the land. While, as shown in 
Chap. XL, I adhere to the inference originally drawn, that the 
aggregate of men forming the community are the supreme 
owners of the land — an inference harmonizing with legal doc- 
trine and daily acted upon in legislation — a fuller considera- 
tion of the matter has led me to the conclusion that individual 
ownership, subject to State-suzerainty, should be maintained. 

Even were it possible to rectify the inequitable doings which 
have gone on during past thousands of years, and by some 
balancing of claims and connter- claims, past and present, to 
make a re-arrangement equitable in the abstract, the resulting 
state of things would be a less desirable one than the present. 
Setting aside all financial objections to nationalization (which 
of themselves negative the transaction, since, if equitably effected, 
it would be a losing one), it suffices to remember the inferiority 
of public administration to private administration, to see that 
ownership by the State would work ill. Under the existing 
system of ownership, those who manage the land, experience a 
direct connexion between effort and benefit ; while, were it under 
State- ownership, those who managed it would experience no 
such direct connexion. The vices of officialism would inevitably 
entail immense evils. 



APPENDIX C. 

THE MORAL MOTIVE. 

Some months after the first five chapters of this volume 
appeared in The Nineteenth Century, the Rev. J. Llewelyn 
Davies published in The Guardian for July 16, 1890, some 
criticisms upon them. Such of these criticisms as concern 
other questions I pass over, and here limit myself to one which 
concerns the sentiment of duty, and the authority of that 
sentiment. Mr. Davies says : — 

" To the best of my knowledge, Mr. Spencer, though often challenged, has 
never fully explained how, with his philosophy, he can take advantage of 
the ordinary language and sentiment of mankind about duty. ... I 
have to repeat a criticism which I offered in my former paper. Mr. Spencer 
seems to me to imply what he professes not to recognise. To construct the 
idea and sentiment of justice, he implies a law having authority over the 
human mind and its conduct — viz., that the well-being of the species is to 
be desired, and an acknowledgment by the human mind of that law, a self- 
justifying response to it. Whilst he confines himself to tracing natural 
evolution, he has no right to use the terms of duty. What can be added to 
the dictum of Kant, and how can it be confuted? — 

"If we fix our eyes simply upon the course of nature, the ought has no 
meaning whatever. It is as absurd to ask what nature ought to be as to ask 
what sort of properties a circle ought 'to have. The only question we can 
properly ask is, What comes to pass in nature ? just as we can only ask, 
What actually are the properties of a circle ? " 

When Mr. Spencer inveighs with genuine moral vehemence against 
aggression and other forms of illdoing, when he protests, for example, against 
11 that miserable laissez-faire which calmly looks on while men ruin them- 
selves in trying to enforce by law their equitable claims" — he is borrowing 
our thunder, he is stealing fire from heaven." 

And then, after further argument, Mr. Davies ends his letter 
by asking for " some justification of the use of ethical terms 
by one who professes only to describe natural and neces- 
sary processes." 

As Mr. Davies forwarded to me a copy of The Guardian con- 
taining his letter, my reply took the form of a letter addressed 



v' 



272 APPENDIX C. 

to him, which appeared in The Guardian for August 6. With 
the exception of an omitted part, relating to another matter, it 
ran as follows : — 

Fairfield, Pewsey, Wilts, July 24, 1890. 
Dear Mr. Davies — The copy of the Guardian has juFt reached me, and I 
have read your criticism with much interest. Would that criticisms in 
general were written in the same spirit ! 

***** 

In asserting the illegitimacy of my use of the words " duty." " ought," 
" obligation,'' &c, you remind me of the criticisms of Mr. Lilly. By such 
community as exists between you, amid your differences, you are both led to 
the assumption that the idea of " duty" can have no other than a super- 
natural origin. 

This assumption implies that men's actions are determined only by re- 
cognition of ultimate consequences, and that if recognition of ultimate con- 
sequences does not lead them to do right, they can have no motive to do 
right. But the great mass of men's actions are directly prompted by their 
likings, without thought of remote results ; and among actions thus prompted 
are, in many cases, those which conduce to other men's welfare. Though, 
on reflection, such actions are seen to be congruous with the ends ranked as 
the highest, yet they are not prompted by thought of such ends. 

The relation of direct to indirect motives is best seen in a familiar case. 
Any normally-constituted parent spends much labour and thought in 
furthering the welfare of his children, and daily, for many years, is impelled 
to do this by immediate liking — cannot bear to do otherwise. Nevertheless, 
while he is not impelled to do what he does by the consciousness that he 
ought to do it, if you ask the reasons for his self-sacrificing conduct he will 
say that he is under obligation ; and if you push your inquiries to the end, 
you will compel him to assign the fact that if men in general did not do 
the like the race would disappear. Though the consciousness of obligation 
may serve to justify, and perhaps in a small degree to strengthen, 
the promptings of his natural affections, yet these are quite sufficient 
of themselves. 

Similarly is it with the idea of obligation in respect of conduct to our 
fellow-men. As you must know from your personal experiences, such con- 
duct may be effectually prompted by immediate desire, without thought of 
other consequence than the benefits given. And though these benefits 
are given from simple desire to give them, if the question be raised whether 
they should be given, there comes the answer that it is a duty to minister to 
human welfare. 

You contend that my theory of moral guidance gives me no warrant for 
anger against aggression, or other ill doing : saying of me that, in such case, 
" he is borrowing our thunder." This implies the assertion that only those 
who accept the current creed have any right to feel indignant when they see 
other men wronged. But I cannot allow you thus to monopolize righteous 
indignation. If you ask what prompts me to denounce our unjust treatment 
of inferior races, I reply that I am prompted by a feeling which is aroused in 
me quite apart from any sense of duty, quite apart from any thought of 
Divine command, quite apart from any thought of reward or punishment 
here or hereafter. In part the feeling results from consciousness of the 
suffering inflicted, which is a painful consciousness, and in part from irrita- 
tion at the breach of a law of conduct on behalf of which my sentiments are 
enlisted, and obedience to which I regard as needful for the welfare of 
humanity in general. If you say that my theory gives me no reason for feel- 
ing this pain, the answer is that I cannot help feeling it ; and if you say that 
my theory gives me no reason for my interest in asserting this principle, the 



THE MORAL MOTIVE. 273 

answer is that I cannot help being interested. And when analysis shows me 
that the feeling and the principle are such as, if cherished and acted upon, 
must conduce to the progress of humanity towards a higher form, capable 
of greater happiness, I find that though my action is not immediately 
prompted by the sense of obligation, yet it conforms to my idea of obligation. 
That motives hence resulting may be adequately operative, you will find 
proof on recalling certain transactions, dating back some eight years, in 
which we were both concerned. You can scarcely fail to remember that those 
who were moved by feelings and ideas such as I have described, and not by 
any motives which the current creed furnishes, displayed more anxiety 
that our dealings with alien peoples should be guided by what are called 
Christian principles than is displayed by Christians in general.* — I am, 
sincerely yours, Hebbert Spencer. 

P.S. — Should you wish to publish this letter as my response to your 
appeal, I am quite willing that you should do so. Other claims on my time 
will, however, prevent me from carrying the discussion further. 

Along with this letter, when published in The Guardian, there 
appeared a rejoinder from Mr. Davies, which, omitting, as before, 
a part concerning a different question, ran thus : — 

Kirkby Lonsdale, July 28, 1890. 
Dear Mr. Spencer — I am much obliged to you for responding so kindly to 
the challenge which I ventured to address to you. You will not think it 
ungracious, I hope, if, notwithstanding the purpose which you intimate in 
your postscript, I make public some of the reflections which your letter sug- 
gests to me. 

***** 

Most amply do I acknowledge the generous zeal for human welfare, the 
indignation against oppression, shown by yourself and others who recognise 
no supernatural sanction of morality. The Christianity of to-day owes much 
to — has, I hope, really gained much from — your own humane ardour and the 
bold protestations of the followers of Comte. A Christian's allegiance is not 
to the Christian world, not even to Christianity, but to the law of Christ and 
the will of the Heavenly Father ; and he may as easily admit that Christians 
have been surpassed in Christian feeling and action by agnostics as that the 
priest and the Levite were put to shame by the Samaritan. 

I have also no difficulty in acknowledging that the performance of good 
offices may arise out of sympathy and pleasure in doing them. I do not 
understand why " the assumption that the idea of ' duty ' has a supernatural 
origin" should be supposed to imply "that men's actions are determined 
only by recognition of ultimate consequences, and that if recognition of 
ultimate consequences does not lead them to do right, they can have no 
motive to do right." I never thought of questioning that men act, in a great 
part of their conduct, from the motives you describe. What I wish to know 
is why, when the thought of duty comes in, a man should think himself 
bound to do, whether he likes it or not, what will tend to the preservation of 
the species. It is quite intelligible to me that you " cannot help " trying to 
protect other men from wrong : what I still fail to see clearly is, how your 
philosophy justifies you in reproaching those who can help being good. It io 

• In my letter as originally written, there followed two sentences which I omitted for 
fear of provoking a controversy. They ran thus : — " Even one of the religious papers 
recognized the startling contrast between the energy of those who do not profess Chiis- 
tianity and the indifference of those who do. I may add that on going back some years 
further you will find that a kindred contrast was implied by the constitution of the 
Jamaica Committee." 



274 APPENDIX C. 

nature, you say, that makes the thoughtful parent good, that makes the 
generous man sacrifice himself for the benefit of his f ellowmen. But nature 
also makes many parents selfishly regardless of the interests of their children ; 
nature makes some men hardened freebooters. If they also cannot help being 
what they are, is there any sense, from your point of view, in saying that they 
act as they ought not to act ? Would they feel that you were appealing to 
their sense of duty if you explained to them as a fact of nature that, should 
other men do as they are doing, the race would tend to disappear ? To Mr. 
Huxley, as a philosopher, a taste for good behaviour belongs to the same 
category as an ear for music — some persons have it and others are without 
it ; the question which I cannot help asking is whether that is the ultimate 
word of your ethics. I cannot see how a man who is made aware that he acts 
only from natural impulse can reasonably consider whether he ought or 
ought not to do a certain thing, nor how a man who knows that he acts only 
for the gratification of his own desires can reasonably throw himself away 
for the sake of any advantage to be won for others. 

As I do not quite know what " the current creed ". may be on the ques- 
tions at issue, I beg leave to sum up my own belief as follows : — The Unseen 
Power is gradually creating mankind by processes of development, and the 
human consciousness is so made as to be responsive to the authority of this 
Power ; justice is the progressive order which the Maker is establishing 
amongst human beings, and it is binding upon each man as he becomes 
aware of it, and is felt to be binding, because he is the Maker's creature. — 
Believe me, very truly yours, J. Llewelyn Davies. 

Before proceeding to discuss further the special question at 
issue, I may remark, respecting the more general question 
involved in Mr. Davies' closing paragraph, that there is a 
curiously close kinship between his view and that which I have 
myself more than once expressed. In § 34 of First Principles 
I have said, in reference to the hesitating inquirer: — 

«' It is not for nothing that he has in him these sympathies with some 
principles and repugnance to others. He, with all his capacities, and 
aspirations, and beliefs, is not an accident, but a product of the time. He 
must remember that while he is a descendant of the past, he is a parent of 
the future ; and that his thoughts are as children born to him, which he may 
not carelessly let die. He, like every other man, may properly consider him- 
self as one of the myriad agencies through whom works the Unknown 
Cause ; and when the Unknown Cause produces in him a certain belief, he is 
thereby authorized to profess and act out that belief." 

And then in the Data of Ethics, § 62, speaking of the different 
types of ethical doctrine as severally presenting one or other 
aspect of the truth, I have said : — 

" The theological theory contains a part. If for the divine will, supposed 
to be supernaturally revealed, we substitute the naturally-revealed end 
towards which the Power manifested throughout Evolution works ; then, since 
Evolution has been, and is still, working towards the highest life, it follows 
that conforming to those principles by which the highest life is achieved, is 
furthering that end." 

Returning now to the special question, I have first to remark 
that Mr. Davies, and those who take kindred views, tacitly 
assume that the conception of " ought " is a universal and a 
fixed conception ; whereas it is a variable conception, and is in 



THE MORAL MOTIVE. 275 

large measure relevant to the social needs of the time being". In 
an article on " The Ethics of Kant," published in The Fortnightly 
Review for July, 1888, and now contained in the third volume of 
my Essays, I have given seven authorities in support of the con- 
clusion that " the lower races of men maybe said to be deficient 
in the idea of right : " they have no such feeling of " ought " as 
is general with us, and where it exists it is often quite otherwise 
directed. Among various savage peoples the duty of blood- 
revenge is of all duties the most sacred. A Fijian slave-tribe 
" said it was their duty to become food and sacrifices for the 
chiefs ; " and Jackson tells of a Fijian chief who was thrown 
into religious frenzy from a belief that the god was angry with 
him for not killing more of the enemy. Nor is it among the 
inferior races that we meet with conceptions of "ought" utterly 
different from those which Mr. Davies assumes are recognized 
by men as of supreme authority. Among the Riff pirates of 
the Morocco coast, the greatest insult a man can receive is to be 
told that his father died in his bed — that he did not die fighting 
while engaged in robbery : the implication being that he ought 
to have so died. Similarly is it with European peoples in 
respect of duels. The aggrieved man is forced by a strong sense 
of obligation to challenge one who has injured him; and the 
injurer entertains no doubt that he ought to accept the challenge 
— feels, in common with all his associates, that it is his duty to 
do this thing which is condemned by the creed he professes. 
And in the German Emperor's recent applause of duelling-clubs 
as giving to the youth " the true direction of his life," we see a 
deliberate advocacy of usages utterly at variance with the 
nominally-accepted principles of right conduct. 

These cases show, I think, that the conception of " ought " is 
relevant, partly to sentiments predominant in the individual, 
partly to the feelings and ideas instilled during education, and 
partly to the public opinion which prevails : all of them variable 
factors. The truth is that every desire, seeking as it does 
gratification, carries along with it the idea that its gratification 
is proper or right ; and when it is a powerful desire it generates, 
when it is denied, the idea that the denial is wrong. So true 
is this that a feeling which prompted a wrong action, but was 
effectually resisted, will, in some cases, afterwards generate 
regret that the act prompted was not committed ; while, 
conversely, a good action at variance with the habitual bad 
actions may be followed by repentance : instance the miser who 
feels sorry that he was betrayed into a piece of generosity. 
Similarly the consciousness of "ought," as existing among men 
of superior types, is simply the voice of certain governing senti- 
ments developed by the higher forms of social life, which are in 
each individual endorsed by transmitted beliefs and current 



276 APPENDIX C. 

opinion — a sanction much stronger than that which any of the 
inferior feelings have. 

A full answer to the question put by Mr. Davies, presented in 
a different and much more elaborate form, has been already 
given in The Data of JEtliics. In the chapter entitled " The 
Psychological View," and more especially in §§ 42 — 46, 
the genesis of the feeling of obligation is explained at con- 
siderable length. 

Perhaps be will still ask — Why, having the feeling of obli- 
gation, should a man yield to it ? If so, the answer is of the 
same general nature as that which may be given to the question 
— Why, having an appetite for food, should a man eat ? Though, 
in the normal order, a man eats to satisfy hunger, and without 
definite consciousness of remoter ends, yet, if you demand his 
justification, he replies that, as conducive to health, strength, 
and ability to carry on life and do his work, the yielding to his 
appetite is needful. And similarly one who performs an act 
which his sense of duty prompts, if asked for his reason, may 
fitly reply that though he yielded to the feeling without thought 
of distant consequences, yet he sees that the distant conse- 
quences of such conformity are, on the average of cases, bene- 
ficial not only to others but in the long run to himself. And 
here let me repeat a truth which I have elsewhere insisted upon, 
that just as food is rightly taken only when taken to appease 
hunger, while the having to take it when there is no inclination 
implies deranged physical state ; so, a good act or act of duty 
is rightly done only if done in satisfaction of immediate feeling, 
and if done with a view to ultimate results, in this world or 
another world, implies an imperfect moral state. 



APPENDIX D. 

CONSCIENCE IN ANIMALS. 

Shortly after tlie publication in The Guardian of the corre- 
spondence reproduced in the preceding Appendix, I received 
from a gentleman residing in Devonshire the letter which I 
here quote :— 

Dear Sir — The following careful observations on animals other than man 
may be of interest to you as supporting your idea that the idea of ' duty ' or 
* ought ' (owe it) may be of non-' supernatural ' origin. [' Supernatural ' is 
used in usual sense without committing the writer to any opinion.] 

My dog has an aversion to injure living flesh or anything that is ' shaped.' 
He will not bite any animal except under the greatest provocation. If I press 
a sharp-pointed pen-knife against the skin of the back, he seizes my wrist 
between his hind teeth. The mechanical advantage is such, that if he closed 
his jaw he could crush flesh and bone. But no matter how I increase or 
prolong the pressure he will not close his jaw sufficiently to mark the flesh. 
I have repeated this and similar experiments many times. I can't find how 
the ' ought ' was established. It is not hereditary. The father was a good- 
tempered * fighting ' dog — the mother most vicious ; but I never allowed her 
to come into contact with the pup but in the dusk, in order to avoid imita- 
tion or unconscious education. 

Until • Punch ' was three yrs. old I never knew him give an angry growl. 
I sat down on his tail, doubling it under me accidentally one day, when I 
heard a growl of a totally different timbre to what I had ever before. 
The odd thing was — when I rose the dog begged pardon for the unusual tone 
and temper in a way that could not be mistaken. Evidently he recognized 
his own violation of an ' ought ' existing in his mind (conscience). 

Further, if I tease him with a rough stick he seizes it and crushes it, but 
if with my crutch (I am lame) or my mahl stick, he seizes it ; but will not leave 
the mark of his teeth in anything that has had ' work ' done on it to 
any extent. 

The ' ought ' may be established as an obligation to a higher mind, in 
opposition to the promptings of the strongest feelings of the animal, e.g. 

A bitch I had many years ago showed great pleasure at the attentions of 
male dogs, when in season. I checked her repeatedly, by voice only. This 
set up the ' ought ' so thoroughly, that tho' never tied up at such times, 
she died a virgin at 13£ yrs. old.* By the time she was 4 she resented 

* At least I have no cause to think otherwise. — T. M. J. 



278 APPENDIX D. 

strongly any attention from the male, and by seven she was a spiteful old 
maid, resenting even the presence of the males. 

Dogs can form a standard of ' ought ' as to skill or poioers of doing, This 
bitch was a powerful swimmer. A young smooth Scotch terrier was intro- 
duced into the house. They became playfellows, chasing and running all over 
the grounds. One day they were crossing the Prince's Street Ferry, Bristol. 
The bitch sprang from the ferry boat as usual into the water and the young 
dog followed; but began to drown. She saw his efforts, seized him by the 
back of neck and swam ashore with him. A few seconds after, she seized 
him and shook him violently for some time. Ever after, she bit or shook 
him if he attempted to play. [Contempt on discovery of want of power she 
apparently regarded before as normal ?] 

Further, 4 indignation ' is not confined to human beings. I used to pretend 
to beat a younger sister and she feigned crying. The bitch flew at me. 
Eeversing the conditions, the bitch growled and finally flew at my sister. 
We tried the experiment many times with other actors and same results. 
Her sympathies were always on the side of the persons attacked, unless she 
had a previous dislike to them. 

Further observation showing her the attacks were feigned, she often joined 
in them with uproarious hilarity, but this state of mind did not arise till 
after repeated observation. 

Pardon these records of observation if they appear trivial. Unfortunately 
I have only been able to make myself acquainted very partially with your 
works, and such facts may have come under your observation to a greater 
extent than under mine. I am yours obdtly., 

T. Mann Jonjes. 

Northam, Devon, 
14/8/90. 

My response, thanking Mr. Jones and recognizing the value 
of the facts set forth in his letter, drew from him a second letter, 
in which he says : — 

"Pray make what use you like of the letter, but it is only right to 
say that some of the facts are in the possession of Prof. Eomanes. You 
can depend upon the accuracy of the observations — I learned to observe 
from the Belfast naturalists, Pattison, the Thompsons and others — and 
I trained my wife, before marriage, to help me, and not run away with 
mere impressions. 

" The idea of ' ought ' is abnormally strong in Punch, the dog I spoke of— • 
his tastes too are unusual. He cares more for sweets than meat. When he 
was about 6 months old I found out some way he had gained the meaning 
of Yes and No. I have hundreds of times offered him a knob of sugar — 
when he was on the point of taking it said No ! He draws back. If he has 
taken it in his mouth a whispered No ! causes him to drop it. If he is lying 
down and I place sugar all round whispering No ! the lumps remain untouched 
till a ' Yes ' is said. But — but — but — the dog differs from the human being ! 
He will rarely accept a first Yes, tho' he does a first No ! Experience has 
taught him the Yes may be followed by a No ! and he waits expectantly. There 
is no eagerness to set aside the ' ought ' when an excuse offers. (Special probably, 
not general in dogs.) The minds of dogs discriminate between great and 
small departures from their standard of • ought.' If I dropped a fair- 
sized piece of sugar, neither Fan (the bitch) nor Punch, considered they 
had the slightest right to touch it. If the piece were very small both 
hesitated — and if No ! were not said, finally ate it. I have tried graduating 
the lumps to find out where the 4 ought ' came in. The male has a finer 



CONSCIENCE IN ANIMALS. 279 

conscience than the female. I need hardly say I carefully avoided loud tones 
and gesticulation. 

" No ! Oh ! So ! Go ! are equivalents to a dog's ear, but the sibilant 
must be very soft. So also 'Yes,' 'bess,' 'press,' but they recognize 
various forms of expression as equivalent. • Yes,' or ' You may have it,' are 
same value to Punch. My pony is nervously anxious to obey the ' ought.' 
Woh ! Halt ! Stop ! <fec, are of equal value. The dog appears to 
me to study the tone less than the. pony and to pay more attention to 
sound and its quantity. Many of the acts of both strike me as possibly 
acts of ' worship ' in its simplest form, e.g., the fact I think I mentioned in 
my letter, of the dog's anxiety to ' propitiate ' on the occasion of his first 
angry growl, when three years old ; though I had not recognized the ' ought ' 
in the dog's mind nor had I ever punished him." 

Along with this letter Mr. Mann Jones inclosed a series of 
memoranda which, while they are highly interesting and 
instructive, also serve to show how carefully and critically his 
inquiries have been conducted, and how trustworthy, therefore, 
are his conclusions. With the omission of some paragraphs, 
they are as follows : — ■ 

Recognition of duty or ought in a bitch — deliberate violation of the principle 
recognized — simulation of indignation at the ought being set at nought 
by a cat. 

Prior to '85 I had satisfied myself that domestic animals recognized duty. 
I was anxious, however, to procure as thoroughly degraded an animal as I 
could to test — 1st, whether the ' ought ' might not proceed from two very 
different classes of motives, which I had been accustomed to distinguish as 
(A) the Rectal-moral and (B) the selfish or conventional-moral. 2ndly, I 
wanted to test whether the idea set forth by some theologians that the ' most 
noxious animal was innocent? and that moral responsibility only attached 
to man, was true. 

I observed a very handsome bitch at Mardock station repeatedly drive a 
large number of fowls belonging to the station-master off the line and plat- 
form so soon as she heard the distance signal. 

I asked her history and found she had been accidentally left by a lady 
travelling in a first-class carriage some months before. I inferred she was 
likely to have been ' spoiled ' and as she was evidently aged, she would not 
easily lose any bad habits. Further, I ascertained she was gluttonous, 
passionate, yet sulky, lascivious, a coward, not fond of children, without any 
strong attachments, and dirty in her habits. She seemed so much like the 
worst specimen of ' fallen humanity ' the putaine, that I asked but one 
more question " She is very intelligent, you have taught her to clear the 
station at proper time ? " " She is very sharp, but I did not teach her ; she 
watched the boy a few times doing the work and then took it as her duty. 
Now, though she is very greedy, if we are late in the morning, she comes 
without her breakfast and has nothing till late in the day rather than not 
ctear the line." This trait decided me. I thought if I removed her from 
the station-master's house, she would drop the last ' duty ' that was at all 
unselfish, and be thoroughly ' bad-all-round.' 

I took her home. She went willingly, shewing no fright and making 
herself at home on reaching my house. I kept her in a house and an 
outhouse 24 hours, feeding her well, then took her to the station when she 
showed little pleasure at seeing her master and little inclination for the old 
duty. By end of a fortnight she took no notice of either. 

The third morning the stable-boy, Ben, came to me. " Sir, Judy is mad. 



280 



APPENDIX D. 



I was sweeping near her over 2 hours ago and stooped to pat her. She 
first bit my hand and then my leg " (both wounds bled) " and she has sat in 
the corner, with her back crushed into it, ever since." I went to the stable, 
spoke kindly to her and then stooped to pat her. She snapt viciously. 
Letting the muscles of the hand balance so that the finger bones and 
metacarpals played loose on each other and the wrist, I struck her heavily 
over the eyes. She snapt again and I struck as she snapt. The contest 
continued 5 minutes, when I left her, nearly blind eyed and tired. I asked 
Ben two hours after how she was. " Oh ! I think she is mad. She is as 
sulky as ever and sits as she was in the corner." When I went in, she came 
forward and fawned upon me. From that day I never struck her. She was 
most obedient, good tempered, gentle and anxious to please me. To a 
certain extent she showed the same character to my wife and to a servant, 
the cook, who was very decided, but to the boy and a younger servant she 
showed the old character and also to others. In fact henceforth she lived a 
double life, altering her apparent character the moment she heard my 
footstep. I saw here that her sense of duty and her obedience had no 
ethical value : they were simply effects of fear, or, in some degree, hope of 
gain. They formed no part of her real character. 

I took care she was frequently and well fed, purposely with a large variety 
of food. I therefore left no motive for theft. About a fortnight after I 
bought her, the cook came to my wife — " Ma'm, I am constantly missing 
things off the kitchen table. Either one of the cats has turned thief or 
Judy takes the things, yet I can't tell how she gets at them. I don't leave a 
chair near enough the table for her to use — besides she is so stiff and long- 
backed that if she tries to get on the chair she slips over the other side." 

I give a diagram of kitchen and surroundings to make clear what follows. 
I caused a number of 

articles of food brought Grardaz 

out of dining room, to 
be placed on the table : 
the chair being put too 
far off for use. Sending 
some of the family in 
the dining room with 
injunctions to keep still 
till I called I left the 
two cats and Judy at 
their plate, /. I then 
went into the garden but 
returned quietly to win- 
dow b, which had a 
coloured muslin half- 
blind that hid me from 
observation. As soon as 

all was quiet Judy left < fo dlnlnq room 

her dinner, went to door J 

d, apparently listened 
intently and looked re- 
peatedly up and down 
She then went 




to x and reared herself on her hind legs, walking along so as to see the whole 
surface of table and going backward so as to get better view. She then went 
to one of the cats and hustled her to the chair. The cat at length under- 
stood Judy, jumped on chair, thence on to table and dragged a meat bone 
down to /. Judy shook her — took the bone and began to pick it. I gave 
the signal and a light-footed ^girl ran into the kitchen. As soon as Judy 



CONSCIENCE IN ANIMALS. 281 

heard the footsteps, which was not till the girl got to the door, she flew at the 
cat with a growl and worried her and finally chased her through a hedge 
200 feet off. 

I saw the whole of this drama enacted on two occasions — parts on several ; 
others saw parts many times. The same caution to ascertain the ' coast 
was clear,' the same employment of one or other of the cats and the same 
feigned indignation and attempt by gesture to fix the theft on the cat, 
occurred every time. 

I don't think I am wrong in concluding that Judy recognized that the cat 
had no right to get on the table after the food ; that she was instigating 
breach of duty, and that she simulated anger in order to shift responsibility 
which her mind acknowledged. 

Space and time prevent my giving many more illustrations of her character. 
She was an extreme type, but I have had other animals like her, who 
recognized duty and " moral obligation " to a greater or less extent as 
something expected of them by a superior, but which they performed entirely 
from hopes of reward or fear of punishment generally, occasionally from 
liking (which was not sympathy) but that form arising from the object 
giving pleasure or profit to the subject so ' liking.' The idea of duty, 
justice, 'ought,' in all such cases arose from selfishness. I class them as 
1 selfish-moral,' conventional-moral, fashion-moral acts of duty, or shortly 
as 'Judyism.' 

I now proceed briefly to consider the ' sense of duty ' or ' ought ' in 
another of my teachers — the dog Punch. I have given details before but 
briefly. He wills not to injure any living thing, nor anything that shows by 
its shape that work has been expended upon it. The most striking instance 
is that I have repeatedly purposely caused him severe and long continued 
pain by pressing upon and even cutting the sub-cutaneous loops of the nerves 
without ever being able to induce him to bite me or even snap at me. In the 
same way, when bitten by dogs, often severely, he will not bite them. There 
appears to me to be here a ' sense of duty,' or of ' ought,' which is speci- 
fically different from all those varieties I have styled Judyism. 

I ask why does he not bite ? 

It may be said he is afraid of you. I think that if anyone saw the rela- 
tions between us they would soon dismiss this as the motive. I appreciate 
him too much as a valuable ' subject' to make the blunder of inspiring fear. 
I would as soon think of doing so as the electrician would think of using his 
most sensitive electroscope roughly. The dog and his pupil are so en rapport 
that if the former wants a door opened, or a thorn or insect removed, he comes 
to me, say I am at my desk, stands up, puts his right paw on my arm and 
taps my shoulder with the left repeatedly till I attend to him, when he clearly 
indicates what he wants, and if the want is to have thorn or insect removed 
he clearly indicates the surface, often to a square inch or nearer. 

It may be urged that he will not hurt me because he has such trust or faith 
in me — he thinks I would not willingly hurt him. There appears something 
in this at first sight, and it gains colour from the fact that when he was less 
than 12 months old, a gamekeeper shot at him when near, and deposited 
about 30 pellets of shot in his head and body, which I extracted. The 
memory of these operations might lead him to class my pressure of the knife 
point as something curative. 

But then, where does such an explanation come in, in his behaviour to my 
mahl stick, which he will not break under the same circumstances that cause 
him to crush an unshaped stick to splinters ? It may be said that when 
bitten by another dog, he does not retaliate because he is a coward. The 
explanation won't do. He barks remonstratively, as he does when I hurt him 
when we are romping, but he won't run away. I can't get him away often, 
and he is frequently bitten more severely in consequence An incident that 

13 



282 APPENDIX D. 

occurred a few days back threw some more light on the idea of ' right ' in 
Punch's (or Monkey's) mind — he answers indifferently to both names. I 
was coming through the very narrow street of West Appledore when a much 
larger dog seized him, and bit Punch so severely about the face as to make 
him bleed. Punch then resisted for the first time, to my knowledge, not by 
biting, but by a Quaker-like defence that was most scientific. He seized the 
other dog firmly by the hind leg above the heel, and raised the leg so high 
off the ground as to throw the dog's body into unstable equilibrium. The 
dog stood still for some time, evidently afraid to move for fear of falling 
on his back and being at the mercy of his opponent. He was in no pain, for 
Punch was not biting but simply holding firmly. At length the attacking 
dog tried to get his head round to bite Punch again, but the latter frustrated 
this by lifting the leg higher and carrying it gradually round in the opposite 
direction to the dog's head, so as to preserve the original distance. At the 
end of about 2 minutes I was compelled to interfere, as a horse and cart 
were coming close. The dog slank off whilst Punch jumped vertically, bound- 
ing many times off the ground in a manner that I can only compare with 
the bounding of a football, barking merrily at the same time. 

Hundreds of similar instances to the few I have given, convince me 
that this dog has in his mind a sense of duty totally different in kind 
from tbat which I have illustrated and characterized as Judy ism. It is in 
fact " Do-as-you-would-be-done-by-ism." I have observed this species of 
sense of duty, of the • ought ' (or morality) in a number of animals, and I 
have become accustomed to call this kind ' Eectal sense of duty ' and hence 
to divide ' morality ' into selfish, emotional, clique, ' fashion ' morality, or 
Judyism, and Eectal morality. 

I never met with two such extreme types of the dominance of the two kinds 
of motive before. Most animals are actuated by the two species of sense of 
duty in varying ratio, many only by selfish or Fashion-morality; but some 
individuals appear affected little by either. These form the utterly ' immoral.' 
So far as my inductions from observations of animals go, the division into 
Eectal and conventional 4 sense of duty ' is exhaustive and inclusive. All 
acts that recognize an ' ought ' appear to me to come under one or the other. 

There is a remarkable difference in the animal according to which sense 
of duty is predominant — which species of morality rules its life. If Rectal, 
the animal is trustworthy and reliable. If conventional, untrustworthy, 
changeable and shifty. So much for results in outward conduct. I appre- 
hend that the results on the mind or ethical sense, of conventional morality 
is on the whole disintegrating. In fact I have observed this in animals, 
though I have not been able to pursue my observations so far as I could wish.* 

On the other hand, the Eectal sense of duty in animals is, in the phrase- 
ology of the philosopher, a developing force. The Eectal morality of the 
animal increases with time. In the phraseology of some theologians it may 
perhaps be termed a regenerating or • saving ' force. (Those who believe 
that a profession of a creed is the only saving force, would scarcely admit it 
had more value than the conventional ' ought,' or perhaps not as much in 
some cases.) 

As to the origin of the Eectal sense of duty or rectal morality, so far as my 
observations go, the chief thing I can predicate is that it is unselfish. 
It seems to be closely connected with ' sympathy,' as distinguished from 
* feeling ' of the kind before defined. The individuals among the higher 
animals who act from the rectal sense of duty appear to be remarkable, so 
far as my observations go, for ability to " put-yourself-in-his-place-edness " 

* Query ? I take it the * rectal ' sense of duty is at the base of all reality 
of character, the conventional has more the character of an acquired 
mental habit. 



CONSCIENCE IN ANIMALS. 283 

which is at the root of true ' sympathy.' The tendency is always " to do 
as they would be done by." In most cases that I have observed it appeared 
to be inborn, but developed as the animal got older. 

The division I have been led to, by hundreds of observations on individuals 
of different species, of the • Idea of duty,' and consequently all morality, 
into Eectal and conventional (mores) I have never seen formulated. Probably 
other observers have made the distinction. It is tacitly recognized, however, 
in most of the oldest writings I know anything of. The recognition of the 
value of the Eectal appears to me to run through many of the books collected 
as the Bible, and the 0. T. and N. T. Apocrypha, like a vein of gold in 
quartz, and to be the very protagon or * nerve-centre stuff' of most of Christ's 
teaching. I have seen the distinction tacitly admitted in many theological 
works, tho' I think I am right in asserting (I say it as the oratorians speak, 
— under correction) there is a want of recognition of the fact that the chief 
(if not only) value of the conventional ' sense of duty,' or selfish ' ought,' is 
to prevent friction. 

Not only do animals (other than man) act upon the " ought " in their minds, 
but some of the more intelligent act as if they expected or believed that 
it existed in the minds of some men. 

In August '86 I was driving Prince (my pony) and at the same time 
discussing an interesting point in science with my wife. I generally guided 
him entirely by the voice, but in the heat of the argument unthinkingly 
emphasized my points with the whip (which had had a new knotted lash on 
that day) on the pony's flanks. He stopped about the third blow and looked 
round. This attracted my wife's attention — ' Prince is remonstrating ' : 
* You struck heavily.' Later on I must have struck him repeatedly. When 
he was loosed from the harness, I was standing out of his direct line to the 
stable-door. Instead of going to the stable, as was usual, he walked up to 
me, and after repeated attempts to draw my attention, touched me with his 
nose and then approached his nose as closely as he could to the wales. This 
he repeated until I had the places bathed. 

About two months later, on a similar occasion, be repeated the same 
actions. 

In autumn '86 I was in Ware with my pony. Coming out of a shop, I 
was on the point of stepping into the carriage when I noticed the pony 
(Prince) watching me. (He was accustomed to my boy jumping up when 
the vehicle was in motion.) I told my wife to start him. She tried repeatedly, 
but he would not move till he saw I was seated, when he started at once. 
(The experiment was repeated many times subsequently.) The strange thing 
is the complicated train of thought that evolved an • ought ' differing in the 
case of a lame man from the duty in other cases. 

The same autumn, we were driving from Wearside to Hadham. On the 
road we met with a group of children with two perambulators. They were 
in awkward positions : several children being close to the left hand hedge, a 
perambulator and children further to right, the second further still, as in 
diagram : the distance between c. p 1 , p 2 and right hedge being about equal. 
There was room to pass between p 1 and p 2 easily, but the children were 

confused and passed repeatedly between the two points. My wife said 

C "See if Prince will 

* _. avoid the children." I 

^1=3* -^ ' l a >. dropped the reins on 

- N ,^_ /'" "^ his neck. He went on 

at a smart trot till 
7 or 8 yards from the 



7i 2 a 



children at a, when he fell into a walk, turned to the right, and passed them 



284 AITENDIX D. 

with the right wheel near the hedge, turning his head more and more to see 
whether he was clearing the right or outer perambulator. He left it about 
3 yds. in the rear, and then returned sharply to the left side of road and 
resumed his trot without any intimation he was to do so. 

In Nov. '87, after the death of my wife, a relative came to live with 
me and she drove the same pony. She is so deaf, she cannot hear a vehicle 
overtaking her. Consequently I always went with her, and if she had the 
reins, signed with my left hand if a vehicle were coming up behind, for her 
to draw over to left. 

As she was driving one day up a steep hill (therefore with slack reins) on 
road to Ware, I heard a brewer's cart coming behind. The man had been 
drinking and followed close in our wake, though there was plenty of room to 
pass if he had kept well to the right. I gave my relative no signal, as I wanted 
to observe the pony's actions. He appeared nervous and restless, turning his 
head as far as he could to the right to see what was wrong. The man drove the 
heavy cart very close behind but the pony could not see the horse or 
vehicle. After 3 or 4 minutes anxiety (I use the word advisedly : the working 
of the ears and the 'twitching' of his muscles justifies me), receiving no 
sign, he deliberately drew as closely as possible into the Ze/i-hand hedge 
and waited. As soon as the waggon passed, he went off at a brisk trot. 

After many experiments on different days I found that if I were driving 
and a vehicle overtook us, Prince waited for me to tighten the left rein, but 
if my relative were driving, he decided by the sound when to draw to the left. 
Even if she tightened the right rein — he disobeyed the sign. After many 
experiments I had full confidence he would always act, if she were driving, on 
the evidence of his own hearing ; and she often subsequently drove without 
me, the pony evidently recognizing his new duties. 

Examples of animals {other than men) initiating co-operationin duty. \Simul~ 
taneous occurrence of the idea of duty, suggested by same circumstances.'] 

In the autumn of 1886, I started after 10 o'clock p.m. from my cottage at 
Baker's End to drive some friends homeward. On descending from the high 
ground, I passed into a dense fog, which the carriage lights failed to 
penetrate 6 feet — the fog reflected the light like a wall. Some distance 
past the Mardock Station road, my road turned almost at right angles. 
Here we so thoroughly failed to find the turning that the horse was driven 
against the bank, up which he reared crashing into the hedge at the top. We 
all alighted and my friends went on. I turned pony and carriage and got 
in, to drive back : the pony moved slowly, but almost dragging the reins out of 
my hands. I got out thinking the reins were caught on the shaft as the pony 
had always shown a liking for a very tight rein down hill and our road here 
was a descent. I could find nothing wrong with the reins. Taking out a lamp 
I went to the pony's head, which he was still holding as low as he could. 
Then I saw his nose was nearly on the back of my black dog Jack (the father 
of Punch) who was standing in front with his nose near the ground, but 
pointing homeward. I got in ; said ' Go on ; ' did not use the reins, but as we 
went at a walking-pace, tried frequently to measure with the whip handle 
the distances they kept from each hedge. They took me safely into the 
yard behind my house, and my measurements showed they kept the middle 
of the road the whole way ; except at one place, where there is a deep gully 
on the right, separated from the road by a very slight fence. Here they kept 
within 18 inches of the left (or further side from the gully). Altho' the 
night was cold and the pace that of the Dead March, the horse was wet 
with perspiration and the dog panting with tongue out when w T e got into the 
yard, probably from the anxiety to do the duty they had undertaken. There 
are 6 turns in the road and three of them are right angles, narrow in all 



CONSCIENCE IN ANIMALS. 285 

eases, but not more than the full length of horse and carriage, in two cases 
I think, and my memory is pretty clear. 

There was a little episode when we got into the yard, illustrating the close 
analogy between the feelings of these animals and human feelings under 
similar circumstances. The horse rubbed his head repeatedly against Jack, 
whilst Jack ' nosed ' or rubbed his face against the pony's. No expression of 
mutual gratulation on the completion of a self-imposed duty could have been 
more significant. 

There is an interesting parallelism between the conclusions 
drawn by Mr. Jones from his observations on the motives of 
animals and the conclusions concerning human motives 
contained, in Chap. IV, "The Sentiment of Justice." The 
distinction between "rectal-moral " and " conventional-moral " 
made by him, obviously corresponds with the distinction made 
in that chapter between the altruistic sentiment and the pro- 
altruistic sentiment. This correspondence is the more note- 
worthy because it tends to justify the belief in a natural 
genesis of a developed moral sentiment in the one case as in 
the other. If in inferior animals the consciousness of duty may 
be produced by the discipline of life, then, a fortiori, it may be so 
produced in mankind. 

Probably many readers will remark that the anecdotes Mr. 
Jones gives, recall the common saying — "Man is the god of 
the dog ; " and prove that the sentiment of duty developed in 
the dog arises out of his personal relation to his master, just as 
the sentiment of duty in man arises out of his relation to his 
maker. There is good ground for this interpretation in respect 
of those actions of dogs which Mr. Jones distinguishes as 
"conventional-moral;" but it does not hold of those which 
he distinguishes as " rectal-moral." Especially in the case of 
the dog wmich vrould not bite when bitten, but contented 
himself with preventing his antagonist from biting again 
(showing a literally-Christian feeling not shown by one 
Christian in a thousand) the act was not prompted by 
dutifulness to a superior. And this extreme case verifies the 
inference otherwise drawn, that the sentiment of duty was 
independent of the sentiment of subordination. 

But even were it true that such sentiment of duty as may 
exist in the relatively-undeveloped minds of the higher 
animals, is exclusively generated by personal relation to a 
superior, it would not follow that in the much-more-developed 
minds of men, there cannot be generated a sentiment of duty 
which is independent of personal relation to a superior. For 
experience shows that, in the wider intelligence of the human 
being, apart from the pleasing of God as a motive, there may 
arise the benefiting of fellow-men as a motive ; and that the 
sentiment of duty may come to be associated with the last as 



286 APPENDIX D. 

with the first. Beyond question there are many who are 
constrained by their natures to devote their energies to 
philanthropic ends, and do this without any regard for personal 
benefit. Indeed there are here and there men who would 
consider themselves insulted if told that what they did was 
done with the view of obtaining divine favour. 



EEFEEENCES. 



To find the authority for any statement in the text, the reader is to 
proceed as follows :— Observing the number of the section in which 
the statement occurs, he will first look out, in the following pages, 
the corresponding number, which is printed in conspicuous type. 
Among the references succeeding this number, he will then look 
for the name of the tribe, people, or nation concerning which the 
statement is made (the names in the references standing in the 
same order as that which they have in the text) ; and that it may 
more readily catch the eye, each such name is printed in Italics. In 
the parenthesis following the name, will be found the volume and page 
of the work referred to, preceded by the first three or four letters of 
the author's name ; and where more than one of his works has been 
used, the first three or four letters of the title of the one containing the 
particular statement. The meanings of these abbreviations, employed 
to save the space that would be occupied by frequent repetitions of 
full titles, is shown at the end of the references ; where will be found 
arranged in alphabetical order, these initial syllables of authors' 
names, &c, and opposite to them the full titles of the works 
referred to. 



EEFEEENCES TO PAET IV. 



§ 8 Cimmarrons (Osw. 61) — Wolves (Eom. 436). § 9. Beavers (Dal. in 
C. N. H. iii, 99)— Crows and Rooks (Eom. 323-5). § 10. Bisons (Rom. 
334-5)— Elephants (Rom. 400-1)— Monkeys (GiU. 170). § 14. Abors (Dalt. 
in J. A. S. B. xiv, 426). § 23. Bogribs (Lub. 509)— Fuegians (Wed. 175) 
— Greeks (Pla. Jow. 229). § 24. Communists (Lav. in Contemporary Review, 
Feb. 1890 ; Bel. 101). § 26. Germany (Daily Papers, Feb. 1890). 

§ 31 Lepchas (Camp, in J. E. S. L. July, 1869)— Hos (Dalt. 206)— Wood- 
Veddah (Tenn. ii, 444)— Kant (Ka. 54-5). § 32. Austin (Aust. 30). 

§ 34. Benthamism (Mill. 93 ; Bel. in Cont. Rev., July, 1890). § 40. Fijians 
(Will." i, 112) — Wends (Grimm. 488) — Herulians (Grimm. 487) — Greeks 
(Gro. ii, 33)— Europeans (Gri. 289 ; Green, 13)— English (Steph. ii, 204, 209). 
§ 41. Early Germans, die. (Mai. 370) — Anc. Russia (Holtz. i, 225-6) 
§ 45 ' Abors (Dalt. in J. A. S. B. xiv, 426) — Nagas (Stew, in J. A. S. B. 
XXIV, 608)— Lepchas (Camp, in J. E. S. L. July, 1869)— Jakuns (Fav. in 
J. I. A. ii). § 46. Fijians (Ersk. 492)— Hebrews (Ex. xxi ; Bent, xv ; 
Lev. xxv. 45, 46) — Christians (1 Cor. vii, 21) — Greeks (Gro. ii, 37, 468-9) 
—Spartans (Gro. ii, 309)— English (Green, 56, 91, 90, 247)— Artizans (Mart, i, 
343). § 52. Suanetians (Fresh, in P. R. G. S. June, 1888, p. 335) — 



288 REFERENCES. 

Dahomans (Burt. i, 2G0). § 54. Locke (Sec. Treat, on Gov. § 27)— 
Comanches (Scho. i, 232) — Chippewayans (Scho. v, 177) — Irish (Green, 431) — ■ 
China (Wil. i, 1-2)— India (Lav. 310, etc.). § 55. Maine (Mai. 184). 
§ 60. Romans (Cop. 2) — English (Rob. in Ency. Brit. art. "Copyright"). 
I 61. Monopolies (Had. 489). § 62. Roman Laiv (Pat. 154-5)— Buddhists 
(Pat. 181, note)— English (Pat. 53). § 63. English (13 Eliz. c. 5 ; 29 Eliz. 
c 5). § 64. Polynesians (Ell. P. E. ii, 346 ; Tho. i, 96)— Sumatra (Mars. 
244)— Hottentots (Kolb. i, 300)— Damaras (And. 228)— Gold Coast (J.E.S. 
(1856) IV, 20)— Congo (Proy. in Pink, xvi, 571)— Eglias (Burt. Abeokuta, 
i, 208)— Timbnctoo (Shab. 18)— Ashantis (Bee. 117)— Arabs (Burck. i, 131)— 
Todas (Mar. 208)— Gonds (His. 12*)— Bodo and Dhimals (Hodg. in J. A. S. B. 
xviii, 718) — Kasias (Hook ii, 275) — Karens (Mas. in J. A. S. B. xxxvii, pt. ii, 
142) — Mishmis (Grif. 35) — Primitive Germans (Tac. Germ, xx) — Celts (Bello, 
iii, 398) — Saxons and Frisians (Konig. 152-3) — Merovingians (Konig. 158-60) 
—France (Civil Code, § 967, etc.). § 69. Polynesians (U. S. Ex. Ex. iii, 
22 ; Ang. ii, 50 ; Ell. Hawaii, 390 ; St. John, ii, 269 — Bechuanas 
(Burch. ii, 395) — Inland Negroes (Land, i, 250) — Ashantis (Bee. 148) — 
Shoa (Harr. ii, 26) — Congo (Proy. in Pink, xvi, 578) — Dahomans (Burt. 
Miss, i, 52) — Fulahs (Wint. i, 170) — Hehreivs (Deut. xxii, 8, etc.) — 
Phoenicians (Mov. ii, 108-110) — Mexicans (Zur. 223) — Cent. Americans (Xim. 
203 ; Pala. 84 ; Sqi. ii, 341)— Patagonians (Fitz. ii, 150) — Mundrucus (Bates, 
274) — Diocletian (Lev. i, 82-3). § 70. Hehreivs (Deut. xxiii, 19-20)— 
Cicero (Arn. 50) — England (Ree. iii, 292; Steph. Comm. ii, 90) France (Lee. 
Rationalism, 293-4). § 72 England (Cunn. 200 ; Thor. i, 118 ; Craik, i, 
108-9 ; Rog. i, 575 ; Ree. iii. 262, 590 ; Pict. Hist, ii, 809, 812, viii, 635)— 
France (Tocque. 427 ; Lev. iii, 286). § 74. Guinea (Bast, iii, 225)— 

Fijians (Lub. 357 ; Ersk. 450 ; Will, i, 121)— Greeks (Plato : Laws, bk. x ; 
Smith, Class. Diet. 714 ; Ency. Brit, ii, 1). § 78. Henry IV. (Green. 258) 
— Nonconformists (Green, 609-13) — Athenians (Pat. 76) — Romans (Pat. 77) — 
English (Pat. 79, 94)— Plato (Pat. 50)— English (Pat. 50-1). § 90. Fijians 
(Will, i, 210) — Fuegians (Voy. Adv. & Bea. ii, 2) — Australians (Trans. 
Eth. Soc. N.S. iii, 248, 288)— Egyptians (Ebers. i, 307-8)— Aryans (Tac. 
Germ, xviii) — Prim. Germans (Gri. 450) — Early Teutons (Mai. 153) — Old 
English (Lapp, ii, 338-9)— Romans (Hunt. 32-3)— Fulc the Black (Green, 95). 
§ 95. Greeks and Romans (Lee. ii, 26) — Teutons and Celts (Gri. 455, etc.) 
Fuegians (Eitz. ii, 171) — New Guinea (Kolff, 301) — New Zealanders (Cook's 
Last Voy. 54) — Dyaks (Broo. i, IS)— Malagasy (Wai. ii, ^1)— Hebrews (Ex. 
xxi, 7; 2 Kings iv, 1; Job xxiv, 9) — Romans (Lee. ii, 31) — Celts (Konig. 
86-7)— Germans (Gri. 461) -Romans (Hunt. 29 ; Konig. 87)— France (Bern. 
189-193 ; Gone. 10-12 ; Bern. 161). § 102. Esquimaux (Hear. 161)— 

Greeks (Gro. ii, 468) — Bodo, Dhimdl and Kocch (Hodg. 157 ; Hodg. in 
J. A S. B. xviii, 741). § 111. Esquimaux (Cran. i, 164-5)— Fuegians 

(Wed. 168) — Veddahs (Tenn. ii. A4Q)—Tasmanians (Bon. 81) — Mountain 
Snakes (Ross., i, 250) — Fish-eaters (Scho. i, 207)— Shirry-dikas (Lew. & 
Clarke, 306 —Comanches (Scho. ii, 127). § 112. Snakes (Lew. & Clarke, 

306)— Creeks (Scho. v, 211)—Dacotahs (Scho. ii, 183-5) — Comanches (Scho. i, 
231) — Uanpes (Wal. 499) — Patagonians (Falk. 123) — Araucanians (Thomp. i. 
405) — Bechuanas (Licht. ii, 329) — East Africans (Burt. C. A. ii, 365) — Coast 
Negroes (J. E. S. 1848, i, 215 ; Wint. i, 127)— Abyssinia (Park, ii, 236-8)— 
Arabs (Palq. 53 ; Burck. i, 284)— Bhils (Mai. i, 576)— Khonds (Macph. 44)— 
Karens (Mas. in J. A. S. B. xxxvii, Pt. II, 142)— Early Teutons (Kemb. i, 268, 
272; Thor. i, 447)— English (Green, 197)— French (Gue. ccviii). § H7. 

Paternal Government (Mai. 133). § 118. Plato (Laws, bks. vi, vii; Rep. 
bk. v)— Aristotle (Rep. bk. vii, 14-16)— Plato (Rep. iv, 19)— Aristotle (Rep. 
bk. vii, 9-10). § 121. Feudalism (Bonne, i, 269)— Fiji (Will, i, 30)— 
Church-and-King Mob (Hux. 103). §131. Thieves (Daily Papers : date 
lost). § 132. Shrewsbury (Jev. 37). § 133. Penny Post (Ency. Brit, 
xix, 565)— Boy Messengers Co. (Daily Papers, March, 1891). 



REFERENCES. 289 



TITLES OF WORKS REFERRED TO. 

And. — Andersson (C. J.) Lake Ngami. 

Ang. — Angas (G. F.) Savage Life and Scenes in Australia and New Zealand. 

Arist. — Aristotle's Politics and Economics. Trans, by E. Walford. (Bonn's 

Series). London, 1871. 
Arn. — Arnold (W. T.) Roman Provincial Administration. London, 1879. 
Aust. — Austin (John) The Province of Jurisprudence determined. 2nd Ed. 

8vo. London, 1861. 
Bast. — Bastian (A.) Der Mensch in der Geschichte. 3 vols. 
Bates.— Bates (H. W.) The Naturalist on the River Amazon. 2nd Ed. 

London, 1864. 
Bee. — Beecham (J.) Ashanti and the Gold Coast. 
Bel. — Bellamy (E.) Looking Backward. 
Bel. — Bellamy in Contemporary Review. 
Bello. — Bellognet (R. Baron de) Ethnogenie Ganloise. 
Bern. — Bernard (P.) Histoire de V Autorite paternelle en France. Montdidier, 

1863. 
Bon. — Bonnemere (E.) Histoire des Paysans. 2nd Ed. 2 vols. Paris, 1874. 
Bomv. — Bonwick (J.) Daily Life and Origin of the Tasmanians. Svo. London, 

1870. 
Broo. — Brooke (C.) Ten Years in Sarawak. 

Burch. — Burehell (YV. J.) Travels into the Interior of Southern Africa. 
Burck. — Burckhardt (J. L.) Notes on Bedouins and Wahdbys. London, 1831. 
Burt. — Burton (R. F.) Abeokuta and the Cameroon Mountains. 2 vols. 1863. 
,, „ The Lake Regions of Central Africa. 2 vols. 8vo. 1860. 

,, ,,, Mission to Gelele, King of Dahomey. London, 1864. 

C. N. H. — CasselVs Natural History, ed. by P. M. Duncan. 6 vols. roy. Svo. 

London, 18[77]-1883. 
Camp. — Campbell in Journal of the Ethnological Society, London. 
Cook. — Journal of Captain Cook's Last Voyage, 1776-79. London, 1781. 
Cop. — Copinger (W. A.) The Law of Copyright. 2nd Ed. 
Craik. — Craik (G. L.) History of English Commerce. 1844. 
Cran. — Crantz (D.) History of Greenland. London, 1820. 
Cunn. — Cunningham (W.) The Growth of English Industry and Commerce, etc. 

8vo. Cambridge, 1890. 
Dal. — Dallas in CasselVs Natural History. 

Dalt.— Dalton (Col. E. J.) Descriptive Ethnology of Bengal. Calcutta, 1872. 
Dalt. — Dalton in Journal of the Asiatic Society, Bengal. 
Ebers. — Ebers (G.) Aegi/pten und die Bucher Moses. Leipzig, 1868. 
Ell.— Ellis (Rev. W.) Narrative of a Tour through Hawaii. 1827. 

,, ,, Polynesian Researches. 1829. 

Ency. Brit. — Encyclopedia Britannica. 9th Ed. 
Ersk. — Erskine (Capt. J. E.) Journal of a Cruize among the Islands of the 

Western Pacific. 8vo. 1853. 
Falk. — Falkner (T.) Description of Patagonia. 
Fav. — Favre (Rev. P.) in Journal of the Indian Archipelago. Vol. II. 

Singapore. 
Fitz.— Fitzroy (Admiral) Narrative of the Surveying Voyages of the 'Adven- 
ture' and 'Beagle,' etc. London, 1839-40. 
Fresh. — Freshfield (D.) in Proceedings of the Royal Geographical Society. 
Gill— Gillmore (P.) The Hunter's Arcadia. 



290 BEFEEENCES. 

Gone— Goncourt (E. & J. de) La Femme an XVIIIe Steele. 8vo. 1862. 

Green. — Green (J. E.) A Short History of the English People. 1880. 

Gri. — Grimm (Jacob) Deutsche Rechtsalterthiimer. Gottingen, 1828. 

Grif. — Griffith (W.) Journal of Travels in Assam, etc. Calcutta, 1847. 

Gro. — Grote (G.) A History of Greece. 10 vols. 4th Ed. 

Gue. — Guerard (B.) Cartulaire de Vabbaye de St. Pere de Cliartres. 2 vols. 

Paris, 1840. 
Harr. — Harris (W. C.) Highlands of ^Ethiopia. London, 1844. 
Hay. — Haydn's Dictionary of Dates. 12th Ed., by Vincent. London, 1866. 
Hear. — Hearne (S.) Journey from Prince of Wales's Fort, etc. Dublin, 1796. 
His. — Hislop (Eev. S.) Aboriginal Tribes of the Central Provinces. 1860. 
Hodg. — Hodgson (B. H.) Kocch, Bodo and Dhimdl Tribes. Calcutta. 

„ „ in Journal of the Asiatic Society, Bengal. 

Holtz. — Holtzendorf-Vietmannsdorf (F. von) Handbuch des deutschen Straf- 

rechts. 4 vols. 8vo. Berlin, 1871. 
Hook. — Hooker (J. D.) Himalayan Journals. 2 vols. 8vo. 1854. 
Hunt. — Hunter (W. A.) Introduction to Roman Law. London, 1880. 
Hux. — Huxley (T. H.) Science and Culture, and other Essays. London, 1881. 
J. A. S. B. — Journal of the Asiatic Society, Bengal. 
J. E. S. L. — Journal of the Ethnological Society, London. 
Jev. — Jevons (W. Stanley) The State in Relation to Labour. London, 1882. 
Ka.— Kant's (E.) Theory of Ethics. Trans, by T. K. Abbott. London, 1873. 
Kemb. — Kemble (J. M.) The Saxons in England. 2 vols. 8vo. 1849. 
Kolb. — Kolben (P.) Present State of the Cape of Good Hope. Trans, by 

Medley. 1731. 
Kolii. — Kolff (D. H.) Voyages of the Dutch Brig the ( Dourga* through the 

Molucca Archipelago, etc. Trans, by G. W. Earl. 1840. 
Konig. — Konigswarter (L. J.) Histoire de V organisation de la Famille en 

France. Paris, 1851. 
Land. — Lander (B.) Journal of an Expedition to the Course and Termination 

of the Niger. London, 1832. 
Lapp. — Lappenberg (J. M.) England under the Saxon Kings. Trans, by 

B. Thorpe. 2 vols. 8vo. 1845. 
Lav. — Laveleye (E. de) in The Contemporary Review. 

„ „ Primitive Property. London, 1878. 

Lee. — Lecky ( W. E. H.) History of European Morals. 3rd Ed. 2 vols. 

London, 1877. 
Lee. — Lecky ( W. E. H.) On Rationalism in Europe. 2 vols. 8vo. 1865. 
Lev. — Levasseur (C) Histoire des classes ouvrieres. 1st and 2nd series. 

4 vols. Paris, 1859-67. 
Lew. — Lewis (M.) and Capt. Clarke. Travels to the Source of the Missouri, 

etc. London, 1814. 
Licht. — Lichtenstein (H.) Travels in Southern Africa in the Years 1803-1806. 

Trans, by A. Plumptre. 2 vols. 4to. 1812-15. 
Locke. — Locke (J.) Two Treatises of Government. 5th Ed. London, 1728. 
Lub— Lubbock (Sir J.) Pre-Historic Times. 2nd Ed. 8vo. London, 1869. 
Macph. — Macpherson (Lieut.) Report upon the Khonds of Ganjam and Cuttack. 

Calcutta, 1842. 
Mai.— Maine (Sir H. S.) Ancient Law. 3rd Ed. London, 1866. 
Mai. — Malcolm (Sir J.) Memoir of Central Asia. London, 1823. 
Mar. — Marsden (W.) History of Sumatra. 

Marsh.— Marshall (Lieut.-Col. W. E.) A Phrenologist amongst the Todas. Lon- 
don, 1873. 
Mart. — Martineau (H.) History of England during the Thirty Years' Peace 

1849-50. 
Mas — Mason in Journal of the Asiatic Society, Bengal. 



REFERENCES. 



291 



Mill.— Mill (John Stuart) Utilitarianism. 2nd Ed. 8vo. London, 1864. 
Mov. — Movers (D. F. C.) Die Phonizier. 2 vols, in 4, 8vo. Bonn, 1841-56. 
Osw. — Oswald (F.) Zoological Sketches. 
Pala. — Palacio. San Salvador and Honduras in 1576 (in Squier, Collection 

No. 1). 
Palg. — Palgrave (W. G.) Journey through Central and Eastern Arabia. 

London, 1865. 
Park. — Parkyns (M.) Life in Abyssinia, etc. 2 vols. 8vo. 1853. 
Pat. — Paterson (J.) The Liberty of the Press, etc. London, 1880. 
Pict. Hist. — Pictorial History of England. 6 vols. 1887-41. 
Pla. Jow.— Plato's Republic. Trans, by B. Jowett. 2nd Ed. 8vo. Oxford, 

1881. 
Proy. — Proyart (Abbe) History of Loango. (In Pinkerton's Collection, XVI.) 
Bee. — Beeves (J.) History of the English Law. Ed. Finlason. 3 vols. 8vo. 

1869. 
Bob. — Bobertson in Encyclopedia Britannica. 9th Ed. 
Bog. — Sogers (J. E. T.) History of Agriculture and Prices in England. 

Vol. I. 1866. 
Bom. — Bomanes (G. J.) Animal Intelligence. 8vo. London, 1882. 
Boss. — Boss (Alex.) Fur Hunters of Far West. London, 1855. 
St. John. — St. John (S.) Life in the Forests of the Far East. 
Scho. — Schoolcraft (H. B.) Information respecting the Indian Tribes of the 

United States. 5 vols. 4to. London, 1853-6. 
Shab. — Shabeeny (El Hage abd Salam) Account of Timbuctoo, etc. pub. by 

J. G. Jackson. 1820. 
Squi. — Squier (E. G.) Nicaragua. New York, 1852. 

Steph. — Stephen (H. J.) New Commentaries on the Laics of England. 6th Ed. 
Steph. — Stephen (J. F.) A History of the Criminal Law of England. 3 vols. 

8vo. 1883. 
Stew. — Stewart in Journal of the Asiatic Society, Bengal. 
Tac. — Taciti (C. C.) Germania. Trans, by Aikin. Warrington, 1777. 
Term. — Tennant (Sir J. E.) Ceylon: An Account of the Island, etc. 3rd Ed. 

. London, 1859. 
Thomp. — Thompson (G. A.) Alcedoh Geographical and Historical Dictionary 

of America, etc. London, 1812. 
Thorns. — Thomson (Dr. A. S.) The Story of New Zealand, etc. 2 vols. 8vo. 

1859. 
Thor. — Thorpe (B.) Ancient Laws and Institutions. 

Tocque. — Tocqueville (A. de) The State of Society in France before the Revo- 
lution. Trans, by Beeve. 8vo. London, 1856. 
U. S. Ex. Ex. — Narrative of the United States'' Exploring Expedition, by 

Commander C. Wilkes. 5 vols. Philad., 1845. 
Wai. — Waitz (T.) Anthropologic. 
Wal. — Wallace (A. B.) Travels on the Amazon and Rio Negro, etc. 8vo. 

London, 1853. 
Wed. — Weddell (James) Voyage towards the South Pole. 1825. 
Wil.— Williams (S. W.) The Middle Kingdom. 2 vols. New York. 
Will. — Williams (Bev. T.) and J. Calvert. Fiji and the Fijians. 2 vols. 8vo. 

1858. 
Wint— Winterbottom (T.) Account of the native Africans in the neighbourhood 

of Sierra Leone. London, 1803. 
Xim. — Ximenez (F.) Las Historias del Origen de los Indios de Guatemala 

[1721]. Publ. por C. Sherzer. Viena, 1857. 
Zur. — Zurita (Al. de) Rapport sur les differentes classes de chefs de la Nouvelle- 

Espagne. Trad, par H. Ternaux-Compans. Paris, 1840. 



THE SYNTHETIC PHILOSOPHY 



HERBERT SPENCER 



FIRST PRINCIPLES. 

1 vol. $2.00. 
CONTENTS. 

Part I. — The Unknowable. 

1. Religion and Science. 4. The Relativity of all Knowl- 

2. Ultimate Religious Ideas. edge. 

3. Ultimate Scientific Ideas. 5. The Reconciliation. 

Part II. — The Knowable. 

1. Philosophy defined. 13. Simple and Compound Evolu- 

2. The Data of Philosophy. tion. 

3. Space, Time, Matter, Motion, 14. The Law of Evolution. 

and Force. 15. The Law of Evolution (con- 

4. The Indestructibility of Matter. tinued). 

5. The Continuity of Motion. 16. The Law of Evolution (con- 

6. The Persistence of Force tinued). 

7. The Persistence of Relations 17. The Law of Evolution (con- 

among Forces. eluded). 

8. The Transformation and Equiv- 18. The Interpretation of Evolution. 

alence of Forces. 19. The Instability of the Homoge- 

9. The Direction of Motion. neous. 

10. The Rhythm of Motion. 20. The Multiplication of Effects. 

11. Recapitulation, Criticism, and 21. Segregation. 

Recommencement. 22. Equilibration. 

12. Evolution and Dissolution. 23. Dissolution. 

24. Summary and Conclusion. 

THE PRINCIPLES OF BIOLOGY. 

2 vols. $4.00. 
CONTENTS OF VOL. I. 

Part I. — The Data of Biology. 

1. Organic Matter. 4. Proximate Definition of Life. 

2. The Action of Forces on Or- 5. The Correspondence between 

ganic Matter. Life and its Circumstances. 

3. The Reactions of Organic Mat- 6. The Degree of Life varies as the 

ter on Forces. Degree of Correspondence. 

7. The Scope of Biology. 



spencer's synthetic philosophy. 



Part II.- 



1. Growth. 

2. Development. 

3. Function. 

4. Waste and Repair. 

5. Adaptation. 

6. Individuality. 



-The Inductions of Biology. 

7. Genesis. 

8. Heredity. 

9. Variation. 

10. Genesis, Heredity, and Vari*- 

tion. 

11. Classification. 
12. Distribution. 



Part III. 

1. Preliminary. 

2. General Aspects of the Special 

Creation Hypothesis. 

3. General Aspects of the Evolu- 

tion Hypothesis. 

4. The Arguments from Classifica 

tion. 

5. The Arguments from Embryo! 

ogy. 

6. The Arguments from Morphol 

ogy. 



The Evolution of Life. 

7. The Arguments from Distribu- 
tion. 

8. How is Organic Evolution 
caused ? 

9. External Factors. 

10. Internal Factors. 

11. Direct Equilibration. 

12. Indirect Equilibration. 

13. The Cooperation of the Factors. 

14. The Convergence of the Evi- 
dences. 



CONTENTS OF VOL. II. 
Part IV. — Morphological Development. 



1. The Problems of Morphology. 

2. The Morphological Composition 

of Plants. 

3. The Morphological Composition 

of Plants (continued). 

4. The Morphological Composition 

of Animals. 

5. The Morphological Composition 

of Animals (continued). 

6. Morphological Differentiation in 

Plants. 

7. The General Shapes of Plants. 

8. The Shapes of Branches. 



9. The Shapes of Leaves. 

10. The Shapes of Flowers. 

11. The Shapes of Vegetal Cells. 

12. Changes of Shape otherwise 

caused. 

13. Morphological Differentiation in 

Animals. 

14. The General Shapes of Animals. 

15. The Shapes of Vertebrate Skele- 

tons. 

16. The Shapes of Animal Cells. 

17. Summary of Morphological De- 

velopment. 



Part V. — Physiological Development. 



1. The Problems of Physiology. 

2. Differentiations among the Out- 

er and Inner Tissues of Plants. 

3. Differentiations among the Out- 

er Tissues of Plants. 

4. Differentiations among the In- 

ner Tissues of Plants. 

5. Physiological Integration in 

Plants. 

10. Summary of Phye 



6. Differentiations between the 

Outer and Inner Tissues of 
Animals. 

7. Differentiations among the Out- 

er Tissues of Animals. 

8. Differentiations among the In- 

ner Tissues of Animals. 

9. Physiological Integration in Ani- 

mals, 
iological Development. 



Part VI. — Laws of Multiplication. 

1. The Factors. 8. Antagonism between Expendi- 

2. A priori Principle. ture and Genesis. 

3. Obversa a jtw iori Principle. 9. Coincidence between High Nu- 

4. Difficulties of Inductive Verifi- trition and Genesis. 

cation. 10. Specialties of these Rela^ 

5. Antagonism between Growth tions. 

and Asexual Genesis. 11. Interpretation and Qualifica- 

6. Antagonism between Growth tion. 

and Sexual Genesis. 12. Multiplication of the Human 

7. Antagonism between Develop- Race. 

ment and Genesis, Asexual 13. Human Evolution in the Fu- 
and Sexual. ture. 

Appendix. 

A Criticism on Professor Owen's The- On Circulation and the Formation 
ory of the Vertebrate Skeleton. of Wood in Plants. 

THE PRINCIPLES OF PSYCHOLOGY. 

2 vols. $4.00. 
CONTENTS OF VOL. 1. 
Part I. — The Data of Psychology. 

1. The Nervous System. 4. The Conditions essential to Ner- 

2. The Structure of the Nervous vous Action. 

System. 5. Nervous Stimulation and Ner- 

3. The Functions of the Nervous vous Discharge. 

System. 6. iEstho-Physiology. 

Part II. — The Inductions op Psychology. 

1. The Substance of Mind. 6. The Revivability of Relations 

2. The Composition of Mind. between Feelings. 

3. The Relativity of Feelings. 7. The Associability of Feelings. 

4. The Relativity of Relations be- 8. The Associability of Relations 

tween Feelings. between Feelings. 

5. The Revivability of Feelings. 9. Pleasures and Pains. 

Part III. — General Synthesis. 

1. Life and Mind as Correspon- 6. The Correspondence as increas- 

dence. ing in Specialty. 

2. The Correspondence as Direct 7. The Correspondence as increas- 

and Homogeneous. ing in Generality. 

3. The Correspondence as Direct 8. The Correspondence as increas- 

but Heterogeneous. ing in Complexity. 

4. The Correspondence as extend- 9. The Coordination of Correspon. 

ing in Space. dences. 

6. The Correspondence as extend- 10. The Integration of Correspon* 

ing in Time. dences. 

11. The Correspondences in their Totality. 



SPENCER S SYNTHETIC PHILOSOPHY. 



Part IV.- 

1. The Nature of Intelligence. 

2. The Law of Intelligence. 

3. The Growth of Intelligence. 

4. Reflex Action. 



-Special Synthesis. 

5. Instinct. 

6. Memory. 

7. Reason. 

8. The Feelings. 



9. The Will. 



Part V. — Physical Synthesis. 



1. A Further Interpretation need- 

ed. 

2. The Genesis of Nerves. 

3. The Genesis of Simple Nervous 

Systems. 

4. The Genesis of Compound Ner- 

vous Systems. 

5. The Genesis of Doubly Com- 

pound Nervous Systems. 



6. Functions as related to these 

Structures. 

7. Physical Laws as thus inter- 

preted. 

8. Evidence from Normal Varia- 

tions. 

9. Evidence from Abnormal Va- 

riations. 
10. Results. 



Appendix. 
On the Action of Anaesthetics and Narcotics. 

CONTENTS OF VOL. II. 
Part VI. — Special Analysis. 



Limitation of the Subject. 13. 

Compound Quantitative Reason- 
ing. 

Compound Quantitative Reason- 14. 
ing (continued). 15. 

Imperfect and Simple Quantita- 16. 
tive Reasoning. 17. 

Quantitative Reasoning in gen- 
eral. 18. 

Perfect Qualitative Reasoning. 19. 

Imperfect Qualitative Reason- 
ing. 20. 

Reasoning in general. 

Classification, Naming, and Rec- 21. 
ognition. 

The Perception of Special Ob- 22. 
jects. 

The Perception of Body as pre- 23. 
senting Dynamical, Statico- 
Dynamical, and Statical Attri- 24. 
butes. 

The Perception of Body as pre- 25. 
senting Statico-Dynamical and 26. 
Statical Attributes. 27. 



The Perception of Body as 
presenting Statical Attri- 
butes. 

The Perception of Space. 

The Perception of Time. 

The Perception of Motion. 

The Perception of Resist- 
ance. 

Perception in general. 

The Relations of Similarity and 
Dissimilarity. 

The Relations of Cointension 
and Non-Cointension. 

The Relations of Coextension 
and Non-Coextension. 

The Relations of Coexistence 
and Non-Coexistence. 

The Relations of Connature and 
Non-Connature. 

The Relations of Likeness and 
Unlikeness. 

The Relation of Sequence. 

Consciousness in general. 

Results. 



SPENCER'S SYNTHETIC PHILOSOPHY. 



Part VII. — General Analysis. 



The Final Question. 

The Assumption of Metaphysi- 
cians. 

The Words of Metaphysicians. 

The Reasonings of Metaphysi- 
cians, [isra. 

Negative Justification of Real- 

Tbe Argument from Priority. 

The Argument from Simplicity. 

The Argument from Distinct- 

A Criterion wanted. [ness. 

Propositions qualitatively dis- 
tinguished. 



11. The Universal Postulate. 

12. The Test of Relative Validity. 

13. Its Corollaries. 

14. Positive Justification of Real- 

ism. 

15. The Dynamics of Consciousness. 

16. Paitial Differentiation of Sub- 

ject and Object. 

17. Completed Differentiation of 

Subject and Object. 

18. Developed Conception of the 

Object. 

19. Transfigured Realism. 



Part VIII. — Corollaries. 

Special Psychology. 5. Sociality and Sympathy. 

Classification. 6. Egoistic Sentiments. 

Development of Conceptions. 7. Ego- Altruistic Sentiments. 

Language of the Emotions. 8. Altruistic Sentiments. 

9. iEsthetic Sentiments. 



9. 



THE PRINCIPLES OF SOCIOLOGY. 

Vol. I. $2.00. 

CONTENTS. 

Part I. — The Data of Sociology. 



1. Super-Organic Evolution. 

2. The Factors of Social Phenom- 

ena. 

Original External Factors. 

Original Internal Factors. 

The Primitive Man — Physical. 

The Primitive Man — Emotional. 

The Primitive Man — Intellect- 
ual. 

Primitive Ideas. 

The Ideas of the Animate and 
the Inanimate. 

The Ideas of Sleep and Dreams. 

11. The Ideas of Swoon, Apoplexy, 

Catalepsy, Ecstasy, and other 
Forms of Insensibility. 

12. The Ideas of Death and Resur- 

rection. 

13. The Ideas of Souls, Ghosts, 

Spirits, Demons. 

14. The Ideas of Another Life. 



10. 



15. The Ideas of Another World. 

16. The Ideas of Supernatural 

Agents. 

17. Supernatural Agents as causing 

Epilepsy and Convulsive Ac- 
tions, Delirium and Insanity. 
Disease and Death. 

18. Inspiration, Divination, Exor- 

cism, and Sorcery. 

19. Sacred Places, Temples, and 

Altars ; Sacrifice, Fasting, and 
Propitiation ; Praise, Prayer. 

20. Ancestor- Worship in general. 

21. Idol- Worship and Fetich- Wor- 

ship. 

22. Animal-Worship. 

23. Plant- Worship. 

24. Nature- Worship. 

25. Deities. 

26. The Primitive Theory of Things. 

27. The Scope of Sociology. 



6 spencer's synthetic philosophy. 

Part II. — The Inductions of Sociology. 

1. What is a Society ? 7. The Sustaining System. 

2. A Society is an Organism. 8. The Distributing System. 

3. Social Growth. 9. The Regulating System. 

4. Social Structures. 10. Social Types and Constitutions. 

5. Social Functions. 11. Social Metamorphoses. 

6. Systems of Organs. 12. Qualifications and Summary. 

Part III. — The Domestic Relations. 

1. The Maintenance of Species. 6. Polyandry. 

2. The Diverse Interests of the 1. Polygyny. 

Species, of the Parents, and 8. Monogamy, 

of the Offspring. 9. The Family. 

3. Primitive Relations of the Sexes. 10. The Status of Women. 

4. Exogamy and Endogamy. 11. The Status of Children. 

5. Promiscuity. 12. Domestic Retrospect and Pros- 

pect. 

Yol. II. 

Part IV. — Ceremonial Institutions. $1.25. 

CONTENTS. 

1. Ceremony in general. *7. Forms of Address. 

2. Trophies. 8. Titles.- 

3. Mutilations. 9. Badges and Costumes. 

4. Presents. 10. Further Class-Distinctions. 

5. Visits. 11. Fashion. 

6. Obeisances. 12. Ceremonial Retrospect and 

Prospect. 

Vol. II. 

Part V. — Political Institutions. $1.50. 

CONTENTS. 

1. Preliminary. 10. Ministries. 

2. Political Organization in gen- 11. 

eral. 12. Military Systems. 

3. Political Integration. 13. Judicial and Executive Systems. 

4. Political Differentiation. 14. Laws. 

5. Political Forms and Forces. 15. Property. 

6. Political Heads— Chiefs, Kings, 16. Revenue. 

etc. 17. The Militant Type of Society. 

7. Compound Political Heads. 18. The Industrial Type of Society. 

8. Consultative Bodies. 19. Political Retrospect and Pros. 

9. Representative Bodies. pect. 

Parts IV and V in One Volume. 
Cloth, $2.00. 



Vol. II. 

Part VI. — Ecclesiastic Institutions. $1.25. 

CONTENTS. 

1. The Religious Idea. 10. The Military Functions of 

2 Medicine-Men and Priests. Priests. 

3. Priestly Duties of Descendants. 11. The Civil Functions of Priests. 

4. Eldest Male Descendants as 12. Church and State. 

Quasi-Priests. 13. Nonconformity. 

5. The Ruler as Priest. 14. The Moral Influences of Priest- 

6. The Rise of a Priesthood. hoods. 

7. Polytheistic and Monotheistic 15. Ecclesiastical Retrospect and 

Priesthoods. Prospect. 

8. Ecclesiastical Hierarchies. 16. Religious Retrospect and Pros- 

9. An Ecclesiastical System -as a pect. 

Social Bond. 

Part VII. — Professional Institutions. In preparation. 
Part VIII. — Industrial Institutions. In preparation. 
Vol. III. — In preparation. 



THE PRINCIPLES OF MORALITY. 

Vol. I. 

Part I.— The Data op Ethics. $1.25. 

CONTENTS. 

1. Conduct in general. 10. The Relativity of Pains and 

2. The Evolution of Conduct. Pleasures. 

3. Good and Bad Conduct. 11. Egoism versus Altruism. 

4. Ways of judging Conduct. 12. Altruism versus Egoism. 

5. The Physical View. 13. Trial and Compromise. 

6. The Biological View. 14. Conciliation. 

7. The Psychological View. 15. Absolute Ethics and Relative 

8. The Sociological View. Ethics. 

9. Criticisms and Explanations. 16. The Scope of Ethics. 

Part II. — The Inductions of Ethics. In preparation. 

Part III. — The Ethics of Individual Life. In preparation. 

Part IV. — The Ethics of Social Life: Justice. $1.25. 

Part V.— The Ethics of Social Life: Negative Beneficence. 

In preparation. 

Part VI. — The Ethics of Social Life: Positive Beneficence. 

In preparation. 

Vol. II. — In preparation. 



New York: D. APPLETON & CO., 1, 3, & 5 Bond Street. 



THE MISCELLANEOUS WORKS 



HERBERT SPENCER 



EDUCATION: 

INTELLECTUAL, MORAL, AND PHYSICAL. 

1 vol., $1.25. Cheap edition, paper, 50 cents. 

CONTENTS. 

1. What Knowledge is of most 2. Intellectual Education. 
Worth? 3. Moral Education. 

4. Physical Education. 

SOCIAL STATICS; 

OR, 

THE CONDITIONS ESSENTIAL TO HUMAN HAPPINESS SPECI- 
FIED, AND THE FIRST OF THEM DEVELOPED. 

1 vol. $2.00. 

CONTENTS. 

Introduction. 

The Doctrine of Expediency. Lemma I. 
The Doctrine of the Moral Sense. Lemma II. 

Part I. 

1. Definition of Morality. 3. The Divine Idea, and the Con- 

2. The Evanescence of Evil. ditions of its Realization. 

Part II. 

4. Derivation of a First Principle. 10. The Right of Property. 

5. Secondary Derivation of a First 11. The Right of Property in Ideas. 

Principle. 12. The Right of Property in Char- 

6. First Principle. [ciple. acter. 

7. Application of this First Prin- 13. The Right of Exchange. 

8. The Rights of Life and Per- 14. The Right of Free Speech. 

sonal Liberty. 15. Further Rights. 

9. The Right to the Use of the 16. The Rights of Women. 

Earth. 17. The Rights of Children. 



Part III. 

18. Political Rights. 24. Religious Establishment. 

19. The Right to ignore the State. 25. Poor-Laws. 

20. The Constitution of the State. 26. National Education. 

21. The Duty of the State. 27. Goverment Colonization. 

22. The Limit of State-Duty. 28. Sanitary Supervision. [etc. 

23. The Regulation of Commerce. 29. Currency, Postal Arrangements, 

Part IV. 

30. General Considerations. 31. Summary. 

32. Conclusion. 

THE STUDY OF SOCIOLOGY. 

1 vol. $1.50. 
CONTENTS. 

1. Our Need of it. 8. The Educational Bias. 

2. Is there a Social Science ? 9. The Bias of Patriotism. 

3. Nature of the Social Science. 10. The Class-Bias. 

4. Difficulties of the Social Science. 11. The Political Bias. 

5. Objective Difficulties. 12. The Theological Bias. 

6. Subjective Difficulties- — Intel- 13, Discipline. 

lectual. 14. Preparation in Biology. 

7. Subjective Difficulties — Emo- 15. Preparation in Psychology. 

tionaL 16. Conclusion. 

ILLUSTRATIONS OF UNIVERSAL PROG- 
RESS. 

1 vol. $2.00. 
CONTENTS. 

1. Progress : its Law and Cause. 8. Illogical Geology. 

2. Manners and Fashion. 9. Development Hypothesis. 

3. The Genesis of Science. 10. The Social Organism. 

4. The Physiology of Laughter. 11. Use and Beauty. 

5. The Origin and Function of Mu- 12. The Sources of Architectural 

6. The Nebular Hypothesis. [sic. Types. 

7. Bain on the Emotions and the 13. The Use of Anthropomor- 

Will. phism. 

ESSAYS : 

MORAL, POLITICAL, AND .ESTHETIC. 
1 vol. $2.00. 
CONTENTS. 

1. The Philosophy of Style. 3. The Morals of Trade. 

2. Our Legislation. 4. Personal Beauty . 



10 spencer's miscellaneous woeks. 

6. Representative Government. 9. State Tamperings with Money 

6. Prison Ethics. and Banks. 

1. Railway Morals and Railway 10. Parliamentary Reforms: the 
Policies. Dangers and the Safeguards. 

8. Gracefulness. 11. Mill versus Hamilton — the Test 

of Truth. 



KECENT DISCUSSIONS 

In Science, Philosophy, and Morals. 1 vol. $2.00. 

CONTENTS. 

1. Morals and Moral Sentiments. 6. Of Laws in general and the Or- 

2. Origin of Animal-Worship. der of their Discovery. 

3. The Classification of the Sci- 7. The Genesis of Science. 

ences. 8. Specialized Administrations. 

4. Postscript: Replying to Criti- 9. What is Electricity ? 

cisms. 10. The Constitution of the Sun. 

5. Reasons for dissenting from the 11. The Collective Wisdom. 

Philosophy of Comte. 12. Political Eetichism. 

13. Mr. Martineau on Evolution. 

THE MAN versus THE STATE. 

Reprinted from " The Popular Science Monthly," with a Postscript. 
Small 8vo. Paper, 30 cents. 

CONTENTS. 

1. The New Toryism. 3. The Sins of Legislators. 

2. The Coming Slavery. 4. The Great Political Superstition. 

These articles, in the course of their publication, aroused a profound 
interest, and the present cheap edition is in obedience to a demand for 
the papers in a form for a wide, popular circulation. 

PHILOSOPHY OF STYLE. 

12mo. Cloth, 50 cents. 
New York: D. APPLETON & CO., 1, 3, & 5 Bond Street. 



D. APPLETON & CO. 'S PUBLICATIONS. 

CHARLES DARWIN'S WORKS. 

ORIGIN OF SPECIES BY MEANS OF NATURAL 
SELECTION, OR THE PRESERVATION OF FA- 
VORED RACES IN THE STRUGGLE FOR LIFE. 

From sixth and last London edition. 2 vols., 12mo. Cloth, 
$4.00. 

DESCENT OF MAN, AND SELECTION IN RELATION 

TO SEX. With many Illustrations. A new edition. 12mo. 
Cloth, $3.00. 

A NATURALIST'S VOYAGE AROUND THE WORLD. 

Journal of Researches into the Natural History and Geology of 
Countries visited during the Voyage of H. M. S. " Beagle." 
Illustrated with Maps and 100 Views of the places visited and 
described, chiefly from sketches taken on the spot, by R. T. 
Pritchett. 8vo. Cloth, $5.00. 

Also popular edition. 12mo. Cloth, $2.00. 

THE STRUCTURE AND DISTRIBUTION OF CORAL 

REEFS. Based on Observations made during the Voyage of 

the "Beagle." With Charts and Illustrations. 12mo. Cloth, 
$2.00. 

GEOLOGICAL OBSERVATIONS on the Volcanic Islands and 
Parts of South America visited during the Voyage of the 
4 'Beagle." With Maps and Illustrations. 12mo. Cloth, $2.50. 

EMOTIONAL EXPRESSIONS OF MAN AND THE 
LOWER ANIMALS. 12mo. Cloth, $3.50. 



D. APPLETON & CO.'S PUBLICATIONS. 

Charles Darwin's Works. — {Continued.) 

THE VARIATIONS OF ANIMALS AND PLANTS UNDER 
DOMESTICATION. With a Preface, by Professor Asa Gray. 
2 vols. Illustrated. Cloth, $5.00. 

INSECTIVOROUS PLANTS. 12mo. Cloth, $2.00. 

MOVEMENTS AND HABITS OF CLIMBING PLANTS. 

With Illustrations. 12nio. Cloth, $1.25. 

THE VARIOUS CONTRIVANCES BY WHICH ORCHIDS 
ARE FERTILIZED BY INSECTS. Revised edition, with 
Illustrations. 12mo. Cloth, $1.75. 

THE EFFECTS OF CROSS AND SELF FERTILIZA- 
TION IN THE VEGETABLE KINGDOM. 12mo. 
Cloth, $2.00. 

DIFFERENT FORMS OF FLOWERS ON PLANTS OF 
THE SAME SPECIES. With Illustrations. 12mo. Cloth, 
$1.50. 

THE POWER OF MOVEMENT IN PLANTS. By Charles 
Darwin, LL. D., F. R. S., assisted by Francis Darwin. With 
Illustrations. 12mo. Cloth, $2.00. 

THE FORMATION OF VEGETABLE MOULD THROUGH 
THE ACTION OF WORMS. With Observations on their 
Habits. With Illustrations. 12mo. Cloth, $1.50. 



New York : D. APPLETON & CO., 1, 3, & 5 Bond Street. 









V\ 






r >v *■ 




s i 






'* ^ 










3 / 



^1 ° , ^ 









,0 0. 



*./"' \./ '%/ 

0^ 



•V 









c ^ ■* 



.#' 



♦ G> \> vv. > ^ 



• V ^s. 



A 



v^. * ; .*<$ 



^ 






** 



o ' o * x "* ,6 X 
A , «, v i • « ■ '- ^ ^ 









x 0o 



O0 X 




,*" 



^ 
























^ N «* ' » « r o. 



j5 ^ 



^ v* 



a> V> 



V 



<y 



... .^ 



■V 






\ V 



>- V 






'* 

,.«, 



.*" . s 









& ^ 



0' 



00 



J? * 



,*°v 



\\- 






; ,^% 




* *6 



n:- v 









O C- V 

<* v. 



,% 






/\ 



,S -^ 



^ '^ 













^- a 



^ V 



</>•<<? 









A, 






■ 



LIBRARY OF CONGRESS 



lllllllllii. 

029 504 018 A 






it 



HI 

■ 

1MM 



H 



1 



EH 

■ 



■ 



■ 



W 






■ 

■ ■ 



■/\$m 



■ 

■ 

■ ■ 






I 



